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Philosophical Foundations of Physician-AssistedDeath and Euthanasia Legislation in Oregon andthe Netherlands: A Comparative AnalysisRebecca F. Stein

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Philosophical Foundations of Physician-Assisted Death and EuthanasiaLegislation in Oregon and the Netherlands: A Comparative Analysis

Keywordsbioethics, philosophy, physician-assisted death, euthanasia

Subject CategoriesConstitutional Law | Ethics and Political Philosophy

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PHILOSOPHICAL FOUNDATIONS OF PHYSICIAN-ASSISTED DEATH AND

EUTHANASIA LEGISLATION IN OREGON AND THE NETHERLANDS:

A COMPARATIVE ANALYSIS

By

Rebecca F. Stein

Senior Honors Thesis in Philosophy, Politics, and Economics

Advisor: Dr. Alexander Guerrero

University of Pennsylvania

May 5, 2015

Table of Contents

I. INTRODUCTION ................................................................................................................................... 1

II. TERMINOLOGY .................................................................................................................................. 3

III. THE DEBATES OVER PHYSICIAN-ASSISTED DEATH AND EUTHANASIA ....................... 6 THE OREGON DEBATES ............................................................................................................................ 8 THE DUTCH DEBATES ............................................................................................................................... 9

IV. CURRENT POLICIES AND USAGE .............................................................................................. 11 THE OREGON DEATH WITH DIGNITY ACT .............................................................................................. 11 THE DUTCH EUTHANASIA ACT ............................................................................................................... 12

V. PHILOSOPHICAL MOTIVATIONS ................................................................................................ 14 OREGON’S AUTONOMY BASIS ................................................................................................................ 14 THE DUTCH SUFFERING BASIS ............................................................................................................... 21 COMPARISON: OREGON’S AUTONOMY BASIS VERSUS THE DUTCH SUFFERING BASIS ......................... 25

VI. AUTONOMY VERSUS SUFFERING: CHARACTERIZING THE ACCOUNTS ..................... 29

VII. AUTONOMY VERSUS SUFFERING: TWO PHILOSOPHICAL CAMPS .............................. 32 AUTONOMY-BASED ACCOUNTS ............................................................................................................. 32 SUFFERING-BASED ACCOUNTS .............................................................................................................. 35

VIII. ASSESSING THE AUTONOMY ACCOUNT ............................................................................. 41 ADVANTAGES OF AN AUTONOMY-BASED ACCOUNT ............................................................................. 41 DISADVANTAGES OF AN AUTONOMY-BASED ACCOUNT ........................................................................ 44

IX. ASSESSING THE SUFFERING ACCOUNT ................................................................................. 47 ADVANTAGES OF A SUFFERING-BASED ACCOUNT ................................................................................. 47 DISADVANTAGES OF A SUFFERING-BASED ACCOUNT ............................................................................ 49

X. TOWARDS A HYBRID PHILOSOPHICAL APPROACH ............................................................ 52 SUGGESTED PAD AND EUTHANASIA CRITERIA ..................................................................................... 54 POLICY REVIEW ...................................................................................................................................... 61

XI. SUMMARY & CONCLUSION ........................................................................................................ 63

BIBLIOGRAPHY ..................................................................................................................................... 65

APPENDIX I. MEMORIAL SYMPTOM ASSESSMENT SCALE ..................................................... 69

APPENDIX II. MCGILL QUALITY OF LIFE QUESTIONNAIRE .................................................. 71

1

I. Introduction

The issue of physician-assisted death (PAD) lies at the intersection of a number of

distinct areas of thought. Between the philosophical foundations of the arguments in favor of and

against the practice, the political and economic implications of its legalization, and the medical

intricacies of PAD and related acts, there are numerous interacting components that must be

considered when discussing the debate over physician-assisted death and the related act of

euthanasia. Against this interdisciplinary backdrop, no single angle can provide a complete

understanding of the manifold issues that surround the end-of-life decision-making of the

medically ill.

Because an exploration of every relevant angle is far beyond the scope of this paper, my

focus will be narrowed to the philosophical foundations of particular laws concerning physician-

assisted death and euthanasia. Understanding the ethical motivations behind these specific

legalized end-of-life practices is not only enlightening, but we can also use an analysis of these

motivations to craft future policies with solid philosophical underpinnings. In this paper, I will

explore the distinct philosophical positions that serve as the bases of the Oregon Death with

Dignity Act (DWDA) and the Netherlands Termination of Life on Request and Assisted

Suicide (Review Procedures) Act, also referred to as the Dutch Euthanasia Act.

In particular, I will focus on the value of respecting patient autonomy, which appears as a

central theme throughout the Oregon Death with Dignity Act, and I will compare this autonomy

basis with the Dutch Euthanasia Act’s central value of avoiding patient suffering. I will weigh

the advantages and drawbacks of these two ethical foundations of autonomy and suffering, and

ultimately argue for a hybrid philosophical approach to the issues of PAD and euthanasia, a

framework that might serve as the basis for an ideal policy formulation.

2

In Section II, I establish definitions for the terminology that I will be using throughout the

paper. In Sections III and IV, I review the debates over physician-assisted death and euthanasia

as they have unfolded in both Oregon and the Netherlands, and introduce the current policies and

practices of PAD and euthanasia in each of those places. In Section V, I begin my philosophical

analysis by exploring the distinct motivations that lie beneath the Oregon Death with Dignity Act

and the Dutch Euthanasia Act, namely Oregon’s emphasis on a respect for patient autonomy, and

the Dutch emphasis on avoiding suffering. In Section VI, I characterize these distinct

philosophical motivations, and in Section VII, I explore the philosophical support that exists for

each of these ethical foundations. I weigh the advantages and drawbacks of both the autonomy-

based and suffering-based accounts of PAD and euthanasia in Sections VII and IX. In section X,

I propose a hybrid philosophical approach to PAD that incorporates important elements of both

the autonomy-based and suffering-based accounts. I examine how such a hybrid approach would

be reflected in my suggested PAD and euthanasia policy. Finally, in Section XI, I summarize my

analysis and present areas for further discussion.

3

II. Terminology

When discussing the controversy over physician-assisted death and euthanasia, the issue

of terminology is of critical importance. Before delving into the debates over PAD and

euthanasia, it will be important to establish the terms that are crucial to our discussion of the

issue. Namely, the distinction between active and passive euthanasia must be established, as well

as the distinction between the practices of active euthanasia and physician-assisted death.

Active Versus Passive Euthanasia:

Active euthanasia is described as the case in which an individual 1 deliberately

administers an agent to his patient that will end the patient’s life. The American Medical

Association considers this sort of active euthanasia to be equivalent to the more general term

“euthanasia,” which they define as “the administration of a lethal agent by another person to a

patient for the purpose of relieving the patient’s intolerable and incurable suffering.”2 In line

with the AMA’s definition, when referring to “euthanasia” throughout this paper, I am

referencing the philosophical notion of active euthanasia, in which a medical professional

directly administers the lethal drug to a patient.

In contrast with active euthanasia, which many thinkers philosophically equate with the

act of killing, passive euthanasia is ethically comparable to letting die. Passive euthanasia is

described as the case in which a medical professional discontinues an action that was previously

keeping his patient alive, or simply fails to take an action that would have kept him alive. This

might involve the removal of a patient’s life-support, the discontinuation of nutrition and

1 The question of who in particular this individual ought to be is a debate in itself. In general, we will be

focusing on active euthanasia administered by medical professionals such as physicians, or more

particularly end-of-life specialists. 2 American Medical Association, “Opinion 2.21 – Euthanasia.”

http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-

ethics/opinion221.page?

4

hydration, or the failure to use “extraordinary means” to keep a patient alive. The distinction

between passive and active euthanasia is a debate in itself, and in general, American law has

been willing to permit passive, but not active, euthanasia under certain circumstances.3 The key

point of controversy at this point in time, and the debate that will be our focus throughout this

paper, is the controversy surrounding the permissibility of active euthanasia and the closely

related act of physician-assisted death.

Physician-Assisted Death:

Physician-assisted death would typically involve a physician prescribing a patient with a

lethal agent for the patient to ultimately administer to herself. Physician-assisted death would

then fall somewhere in between active and passive euthanasia. For, the physician is the one who

prescribes the lethal dose, but it is the patient who takes the medication on her own volition, at

the time of her choosing. The American Medical Association, which officially disapproves of the

act, defines “physician-assisted suicide” as occurring when “a physician facilitates a patient’s

death by providing the necessary means and/or information to enable the patient to perform the

life-ending act.”4 The means that enable this life-ending act typically involve the prescription of

some sort of lethal drug that the patient can then choose to take to end her life. Despite the

AMA’s use of the term physician-assisted suicide, for the purposes of this paper I will refer to

that act as physician-assisted death, as proponents of Death with Dignity generally do. 5

Similarly, although many of the philosophers and theorists discussed in this paper use physician-

3 For more on the U.S. Passive Euthanasia discussion, see the Supreme Court case Cruzan v. Director,

Missouri Department of Health. 4 American Medical Association. “Opinion 2.211 - Physician-Assisted Suicide,” http://www.ama-

assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page?. 5 The debates over the terms physician-assisted suicide and physician-assisted death are part of a larger

discussion that will be expanded upon later on in the paper.

5

assisted suicide terminology, I will consider their notions of physician-assisted suicide to fall

within my established definition of physician-assisted death.

6

III. The Debates over Physician-assisted Death and Euthanasia

The debate over physician-assisted death has arisen as a highly controversial issue only in

the past few decades. In the United States, debates over PAD have generally revolved around the

question of a right to die, and to what extent individuals have the Constitutional right to

determine the times and manners of their deaths. Those who argue in favor of such a

Constitutionally protected right generally base their views on the liberty interest that is included

in the Due Process Clause, claiming that individuals should have the freedom to make important

end-of-life decisions, such as the decision to request physician-assisted death. Opponents of a

legalized right to physician-assisted death and euthanasia have used a variety of arguments,

including claims about the sanctity of life and the Constitutional protection of life. In this

manner, these counter-arguments might be comparable to pro-life advocates in the abortion

debates, who base their arguments upon the presumed Constitutional protection of life.

Although there is not a clearly established right to die under the Federal Constitution,

many U.S. states have implemented legislation related to the practice of physician-assisted death,

both permissive and prohibitive. With no Constitutional rule against the general practice of

physician-assisted death, these state-level laws related to the practice have been at the core of

many conflicts that have risen to the Supreme Court level. In recent history, several cases

surrounding the issue of PAD have been brought forth to the U.S. Supreme Court, and in general,

the Court has been unwilling to support physician-assisted death, mainly by maintaining that a

right to die is not included in the Constitution.

In 1997, in the cases of Washington v. Glucksberg and Vacco v. Quill, the Supreme Court

made two important rulings affirming state prohibitions against physician-assisted death. In the

Washington v. Glucksberg case, the Court held that the Constitution’s Due Process Clause does

7

not protect the right to physician-assisted death, as supporters of the practice claim. The same

year, in Vacco v. Quill, the Court upheld New York State’s prohibition against physician-assisted

death. Despite these two Supreme Court cases affirming prohibitions against the practice, state-

level laws granting patients the right to die through PAD are currently in place in Oregon,

Washington, and Vermont, with related discussions in place in other states such as New Mexico

and Montana. As the first U.S. state to implement physician-assisted death legislation with the

adoption of the 1994 Oregon Death with Dignity Act, the state of Oregon has lead the rest of the

country’s Death with Dignity initiatives, with Washington and Vermont adopting similar

versions of the Oregon policy.6

Discussions regarding physician-assisted death and euthanasia have also played out

extensively across Europe. As opposed to the closely related Death with Dignity laws that are in

place in America, there are major differences amongst the various physician-assisted death and

euthanasia laws that have been implemented throughout Europe. For the purposes of this paper, I

will be examining physician-assisted death and euthanasia laws in the Netherlands, and in

particular, how the basis of the Dutch legislation contrasts with that of the Oregon Death with

Dignity Act. Of course, there are many more examples of physician-assisted death and active

euthanasia legislation that I will not be discussing in this paper. I have selected Oregon and the

Netherlands as samples to compare because of the long-established histories of their respective

euthanasia and physician-assisted death legislations, and the strong contrasts that are present

between these two policies.

6 Howard Ball, “The Pioneering PAD States,” In At Liberty to Die the Battle for Death with Dignity in

America (New York: New York University Press, 2012), 131.

8

The Oregon Debates

The Oregon debates over physician-assisted death began in the late 1980’s, when

Hemlock Society USA founder Derek Humphry began campaigning in favor of the practice.

Humphry’s efforts were aided by the Oregon Compassionate Choices group in the early 1990’s,

and in 1994 voters approved the Oregon Death with Dignity Act. The Oregon DWDA went into

effect in 1997, in response to the aforementioned Washington v. Glucksberg ruling that the Due

Process Clause does not protect the right to assisted-death. Between its approval and

implementation, the Oregon Death with Dignity Act was fiercely challenged by groups such as

the Roman Catholic Church and various Oregon health care organizations.

Many other challenges against the act were posed following its implementation, including

a notable attempt by the U.S. Attorney General to punish Oregon physicians who prescribed

lethal drugs to their patients. In the 2006 Gonzales v. Oregon decision, the Supreme Court ruled

against the Attorney General’s attempts to enforce the Controlled Substances Act against

physicians prescribing life-ending drugs to their terminally ill patients. The Gonzales case was

heard in response to an Interpretive Rule issued by Attorney General John Aschroft in 2001,

stating that physicians prescribing lethal agents to their patients for the purpose of physician-

assisted death were in violation of the Controlled Substances Act. Ashcroft claimed that

physician-assisted death was not a legitimate medical purpose, and that it therefore violated the

9

Act. Aschcroft’s rule was successfully challenged by the state of Oregon, backed by a group of

terminally ill patients, a doctor, and a pharmacist.

Since the 2006 Gonzales case, the Death with Dignity law in Oregon has been upheld

despite the many debates that surround the issue. The law has continued to withstand the

numerous challenges that have been raised against it, and is still in place almost 20 years after its

implementation. The issue of PAD gained America’s attention in November of 2014 when 29-

year-old Brittany Maynard published an article about her decision to move to Oregon to use the

state’s Death with Dignity law to end her battle with terminal brain cancer.7 The American PAD

debates continue to gain national press coverage, even as recently as March 2015, when the New

York Times publicized an article dedicated to the topic that features a detailed examination of the

Oregon Death with Dignity Act.8 We will be looking at Oregon’s Death with Dignity Act in

greater detail in Section IV.

The Dutch Debates

The euthanasia9 debates in the Netherlands began gaining their force with the 1973

“Postma Case,” when a physician was convicted for murder after euthanizing her dying mother.

Although this was not a “win” for legalized euthanasia, this case opened up the country’s

7 Brittany Maynard, “My Right to Death with Dignity at 29,” CNN, November 2, 2014,

http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/. 8 Clyde Haberman, “Stigma Around Physician-Assisted Dying Lingers,” The New York Times, March

22, 2015, http://www.nytimes.com/2015/03/23/us/stigma-around-physician-assisted-dying-

lingers.html?_r=0. 9 In the Netherlands, the debates are framed around euthanasia, a category which includes the less

extreme act of physician-assisted death.

10

euthanasia debates, a discussion which has now been evolving for decades. In the 1980’s, the

Royal Dutch Medical Association worked to try to encourage physicians to report their cases of

euthanasia. This attempt to manage the country’s use of Euthanasia marked a step toward the

country’s favorable stance on the issue.

In 1982 a State Commission was put in place to address the issue of euthanasia in the

Netherlands, eventually creating a set of criteria that would need to be met in cases of physician-

administered euthanasia. During the State Commission’s work, the 1984 Schoonheim case

became the first euthanasia case to be judged by the Dutch Supreme Court. In this case, the

Court acquitted a physician who euthanized his 95-year-old patient who was facing severely

deteriorating health and dignity. Raphael Cohen-Almagor explains the court’s reasoning for the

Schoonheim case saying, “The Court accepted the doctor's defense that he faced a conflict of

responsibilities between preserving the patient's life and alleviating suffering.”10 Schoonheim’s

acquittal marked a major step toward the Netherland’s acceptance of physician-administered

euthanasia in cases of patients facing severe and interminable suffering.

Following the famous Schoonheim case, measures were continually taken through the

1990’s to encourage increased transparency and reporting of euthanasia in the Netherlands, until

1998 when an official reporting procedure involving review committees was established.

Euthanasia was officially legalized in the Netherlands in 2002 with the implementation of the

Termination of Life on Request and Assisted Suicide (Review Procedures) Act, which allows a

physician to end a severely suffering patient’s life upon request, or to prescribe such a patient

with a life-ending agent. More information on the details of the Dutch law will be presented in

the next section.

10 Raphael Cohen-Almagor, Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing,

Springer Science & Business Media (2008), 41.

11

IV. Current Policies and Usage

Having provided the context of the physician-assisted death and euthanasia debates that

have unfolded in Oregon and the Netherlands, we can now delve into the policies that are

currently in place in each of these locations. In this section, I will detail both the Oregon Death

with Dignity Act and the Dutch Euthanasia Act, outlining the eligibility standards that each of

these policies require, and the processes that they call for when it comes to an eligible patient

going about ending her life. We will also take a brief glimpse at how widely these policies have

been utilized in their respective regions since the times of their implementation.

The Oregon Death with Dignity Act

According to the Oregon Death with Dignity Act, any competent Oregon resident aged

18 or older who is suffering from a terminal illness with a life expectancy of six months or less

has the right to voluntarily request a prescription for life-ending medication that the patient will

administer to himself. The law requires that such a request be initiated by the patient himself, and

followed by a second oral request that is made at least fifteen days after the initial request. The

patient must also be informed about all alternative treatment options. After a patient’s request for

physician-assisted death is made, a second physician must confirm the patient’s condition and

diagnosis, and two witnesses must confirm his request. If the physicians believe that a patient’s

judgment might be impaired by depression, the patient must be referred to a psychiatrist to be

evaluated.

If the patient meets the aforementioned criteria outlined by the Oregon DWDA, the

primary physician can then write a prescription for lethal medication, and when doing so she

must confirm that she has fulfilled the requirements of the act through a report that is submitted

12

to the health division.11 As of 2014, a total of 1,327 people have had lethal prescriptions written

through the Death with Dignity Act, with 859 patients dying by taking the lethal drug prescribed

through the act.12

The Dutch Euthanasia Act

The 2002 Termination of Life on Request and Assisted Suicide (Review Procedures) Act

regulates both physician-administered euthanasia and physician-assisted death in the

Netherlands. It is important to note that the Dutch laws treat PAD and euthanasia as morally

equivalent, and require nearly identical conditions for both acts. The law in the Netherlands

applies to patients of at least 12 years of age, with patients under 16 requiring parental consent,

and patients between 16 and 18 requiring parental consultation. It makes euthanasia and PAD not

punishable as long as the attending physician acts in line with a number of criteria: 1) The patient

must be experiencing unbearable suffering with no hope of improvement. 2) The patient must

make a voluntary and persistent request. 3) The patient must fully understand his condition and

options. 4) A second physician must be consulted to confirm that the preceding three conditions

have been met. 5) The doctor or patient must execute the death in a manner that is medically

appropriate, and if the patient takes his life on his own, a physician must be present.

It is also worth noting that although there is no residency requirement within the

Netherlands policy, the act does require the existence of a close and well-established relationship

11 Death with Dignity Requirements, Oregon Public Health Division,

https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Do

cuments/requirements.pdf. 12 Oregon Public Health Division,

http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Doc

uments/year17.pdf.

13

between the physician and the patient.13 Unlike the Oregon Death with Dignity Act, the Dutch

Termination of Life on Request and Assisted Suicide (Review Procedures) Act does not require

that the patient be terminally ill with a required life expectancy in order to be eligible for PAD,

but instead states that the patient must be facing interminable suffering, a category which might

include mental and physical suffering with a long or even unknown life expectancy.

Under the Dutch Euthanasia Act, there are also significant requirements detailing reports

that the physician must submit to one of five regional review committees. In fact, much of the

text of the Dutch legislation is dedicated to the details of the required reporting practices, with

physicians using PAD and euthanasia viewed as violating the Criminal Code until the case has

successfully passed through the extensive review process that the law puts in place. The review

committees—each of which must include at least one legal specialist, one physician, and one

ethicist—are tasked with reviewing every euthanasia and PAD case to ensure that the attending

physician has acted in line with the due care criteria outlined in the Act.14 As of a 2012 report

from CBS StatLine, the country saw close to 4,000 deaths by euthanasia, and almost 200

physician-assisted death cases.15

13 G. K. Kimsma, “Death By Request In The Netherlands: Facts, The Legal Context And Effects On

Physicians, Patients And Families,” Medicine, Health Care and Philosophy, 355-61. 14 “Review procedures for the termination of life on request and assisted suicide and amendment of the

Criminal Code and the Burial and Cremation Act (Termination of Life on Request and Assisted Suicide

(Review Procedures) Act),” Online.

http://www.patientsrightscouncil.org/site/wp-content/uploads/2012/05/Dutch_law_04_12.pdf 15 CBS StatLine, Statistics Netherlands, “Deaths by medical end-of-life decision; age, cause of death,”

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLen&PA=81655ENG&LA=en.

14

V. Philosophical Motivations

Having laid the groundwork for these distinct euthanasia and physician-assisted death

policies in Oregon and the Netherlands, I will now examine the apparent motivations that

underlie each of these important pieces of legislation. In looking at the text16 of the Oregon

Death with Dignity Act in comparison with the Dutch Termination of Life on Request and

Assisted Suicide (Review Procedures) Act, it becomes clear that each of these policies is a

product of particular interests and points of emphasis, revealing the distinct philosophical

foundations that underlie these two laws.

Oregon’s Autonomy Basis

In assessing the motivations that underlie Oregon’s Death with Dignity Act, which has

served as the basis of related laws in several other states in America, it will be necessary to take a

close look at the specific set of circumstances under which the Oregon DWDA permits a

physician to assist his patient in dying. Furthermore, I will examine the discussions that took

place in Oregon during the time of the law’s passage to find the points of emphasis that were

used in the debate.

In my discussion of the Oregon legislation, I will be arguing that the value of patient

autonomy stands at the forefront of the Oregon Death with Dignity Act. Before doing so, I will

need to outline the characteristics that comprise my understanding of autonomy. The Stanford

Encyclopedia of Philosophy defines individual autonomy as “an idea that is generally understood

to refer to the capacity to be one's own person, to live one's life according to reasons and motives

16 In this paper, I will use the details of the legislative texts themselves as the key points of comparison,

although there is certainly a comparison that can be made between the distinct legal and political debates

about the issue that took place in Oregon and the Netherlands.

15

that are taken as one’s own and not the product of manipulative or distorting external forces.”17 I

will accept this general definition of autonomy, and expand on characteristics that are important

to autonomy in the context of medical decision-making. In particular, I will consider a patient’s

autonomous treatment decision to be one that is in line with a patient’s own “reasons and

motives,” cited in the definition. I might refer to these reasons and motives as an individual’s

core or fundamental values, which remain consistent over time. In cases of clinical decision-

making, the “manipulative or distorting external forces” referred to in the definition would be

any forces that could influence an individual’s decision to be out of line with that individual’s

fundamental values. Such forces could be the influence of medical professionals or family

members, or a patient’s distorted mental state, which might lead the patient to make a treatment

decision that is misaligned with the values that would normally guide that patient.

Upon a detailed reading of the Oregon Death with Dignity Act, it appears that a leading

motivation behind the legislation is a desire to respect patient autonomy. This is clear throughout

the text of the statute, where it is emphasized that the patient must be deemed “capable” and that

the patient’s request for a life-ending agent must be “voluntary.” 18 This emphasis on the

decision-making capability of the patient and the voluntary nature of the request seems to stem

from a desire to ensure that no force—be it depression or coercion by some other party—can

infringe on the autonomous nature of the patient’s decision. And thus, much of the motivation

behind many features of the Oregon Death with Dignity Act seems to be a philosophical valuing

of patient autonomy when it comes to end-of-life decision-making. This autonomy emphasis

was apparent in the local news at the time of the 1994 Oregon decision, with The Oregonian

17 John Christman, "Autonomy in Moral and Political Philosophy", The Stanford Encyclopedia of

Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.),

http://plato.stanford.edu/archives/spr2015/entries/autonomy-moral/. 18 Oregon Death with Dignity Act revised Statute, Chapter 127,

https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors127.html.

16

quoting legal expert Arthur LaFrance saying that the statute “acknowledges the autonomy of the

individual, and that autonomy is a centrally protected constitutional concept.”19

Throughout the text of the Oregon legislation, there appear many examples of safeguards

that the law puts in place on order to protect patient autonomy. Firstly, the statute requires that

eligible patients be 18 years or older, which might be based upon the belief that a person lacks

some degree of decision-making capability before the age of 18. In requiring that the patient be

18 or older, the Oregon legislation is limited to only those patients who have reached an age at

which they are capable of autonomous decision-making. Although it is difficult to measure the

formation of individuals’ value systems, it is certainly reasonable to claim that an individual does

not have a fully formed set of values until reaching adulthood, at which point it is generally

believed that peoples’ core principles and motives are cemented. Therefore, this age requirement

incorporates the value of autonomy, as we couldn’t expect an individual to make an autonomous

decision that is in line with the “reasons and motives that are taken as ones own,” as Stanford’s

definition puts it, if that individual has not yet reached the age at which those values are

crystallized.

According to the Oregon DWDA, a patient must also make two requests for physician-

assisted death spaced no less than 15 days apart, which ensures the certainty of the patient’s

request by requiring that the patient take due time to fully reflect on the decision and evaluate

whether he still chooses PAD even after the passage of some time. This requirement seems to be

based on the value of patient autonomy, because the required 15-day gap between requests

reflects how autonomy, by definition, does not just value an individual’s temporary preferences.

Rather, the value of autonomy concerns the idea of an individual making choices that are

19 Patrick O’Neill, “Physician-Assisted Suicide Law Has It’s Day in Court,” The Oregonian, December

19, 1994.

17

consistent over time, in that they are in line with that individual’s fundamental values, which are

more firmly established than his ever-changing momentary preferences. Together, the age

minimum and the two-request requirement emphasize the Oregon lawmakers’ apparent

intentions of ensuring that a patient who chooses PAD not only be fully capable of making

intelligent decisions for himself, but also that the decisions he makes are well-thought-out over

an extended period of time. These requirements can therefore be viewed as protecting patient

autonomy, as they ensure that the patient is old enough to make an autonomous decision, and

that such decisions with this autonomous quality can withstand the passage of time and still

remain in line with that patient’s core beliefs or fundamental values.

Further protecting patient autonomy is the Oregon DWDA’s requirement that a patient’s

depression is not influencing his decision to die. The Oregon law requires that a patient be

evaluated psychiatrically if the physician fears that depression or any other mental impairment

may be impacting his decision-making capabilities. Therefore, according to the law, a patient’s

depressed state is a possible interference on a patient’s autonomy, and a safeguard must be put in

place in order to avoid this potential infringement. Depression is viewed as a threat to autonomy,

in that it may cause an individual to act in a manner that is out of line with his fundamental

values. This view of depression as a condition that undermines autonomy is generally held in the

bioethics community, as outlined by Paul Biegler.20 Therefore, Oregon’s requirement that the

patient requesting physician-assisted death not be influenced by depression is a reflection of the

value of patient autonomy, in that it secures a patient’s autonomy from the potential threat of

depression.

Beyond outlining these details of the characteristics that PAD-eligible patients must

possess, the Oregon law also requires witnesses to ensure that the patient is fully autonomous in

20 Paul Biegler, “Autonomy And Ethical Treatment In Depression,” Bioethics 24, no. 4 (2010), 181.

18

making his decision to die. Witnesses are required to make sure the patient is “capable, acting

voluntarily, and is not being coerced,” three qualities which are repeated throughout the text of

the legislation. 21 It is interesting to also note that the law protects not only the patient’s

autonomy, but the physician’s autonomy as well. The law reveals this respect for physician

autonomy when it states that no physician may be forced to assist his patient in dying. Just as a

patient may not be coerced by another person or by a skewed psychological state to engage in

PAD, a physician, too, can only assist in his patient’s suicide if he independently wills to do so.

This protection of the physician’s autonomy further emphasizes the important role that autonomy

plays throughout the Oregon legislation, as it ensures that all parties of every PAD decision are

acting out of their own volitions.

Beyond this respect for patient autonomy, there are certainly other significant motivations

behind the Oregon legislation, namely, an attempt to distinguish physician-assisted death as it is

laid out in the Oregon legislation from typical cases of suicide. In particular, the requirement that

the patient be suffering from a disease that will kill him in six months or less reveals the

lawmakers’ attempt to separate the cases of physician-assisted death made possible by this law

from the characteristics that are generally associated with suicide. When compared with the form

of physician-assisted death that is legalized by the Oregon DWDA, most cases of suicide are

associated with people who would have lived average lifespans bringing about their own deaths

earlier than would have been natural.22 Suicide is therefore viewed as something irrational or

21 Oregon Death with Dignity Act revised Statute, Chapter 127,

https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors127.html. 22 According to the CDC, in 2013 the U.S. suicide rate is highest for people aged 25 to 64 (16.25 deaths

per 100,000 people), an age group whose members, we can assume, would have otherwise lived to the

average U.S. life expectancy of about 79 years. The suicide rate in this 25-64 age group surpassed the 65+

age group in 2004 and 2006, and has been increasing since. See the CDC’s “Trends in Suicide Rates

Among Both Sexes, by Age Group, United States, 1991-2009.”

http://www.cdc.gov/violenceprevention/suicide/statistics/trends02.html.

19

unreasonable, as the act would significantly shorten a person’s otherwise long and physically

healthy life. On the other hand, the physician-aided deaths of people with terminal illnesses who

will die within a short amount of time seems like more of a rational and well-reasoned decision,

given the futile and miserable nature of the patient’s condition. This six-month requirement

ensures that physician-assisted death only be permitted for patients who will soon die anyway,

thereby separating these permissible cases with general cases of suicide that involve notably

early deaths. This important distinction between PAD and suicide can therefore counter the

potential argument that the Oregon Death with Dignity Act is just a way for people to kill

themselves. Instead, PAD is portrayed in the Oregon DWDA as allowing the rational and well-

reasoned hastening of an inevitable and otherwise painful death.

It is interesting to note that the motivations behind this six-month life expectancy

requirement might also be the reason that proponents of PAD use the term “physician-assisted

death” instead of the widely used “physician-assisted suicide” terminology. Because the act of

PAD hastens the patient’s death, which will inevitably occur soon, rather than ending the

patient’s life long before his death would have naturally occurred, “death” seems to be a more

fitting term for the act than “suicide,” which is often viewed as an irrational end to an otherwise

long life. As explained in the University of Washington School of Medicine’s Ethics in Medicine

journal, the physician-assisted death terminology “is meant to reflect the requirement that

eligible persons must be decisionally competent and have a limited life expectancy of about 6

months or less.” And furthermore, “the term is meant to reflect that physicians provide assistance

to patients who are otherwise going to die, and who seek help to control the timing and

circumstances of their death in the face of end-of-life suffering they deem intolerable.”23

23 Clarence H. Braddock III and Mark R. Tonelli, “Physician Aid-in-Dying,” Ethical Topics in Medicine

(1998), https://depts.washington.edu/bioethx/topics/pad.html.

20

This requirement that the patient have a life expectancy of six months or less is also

particularly telling because it reveals that mere suffering is not the top criteria that is considered

in these cases of physician-assisted death. For, two patients might be experiencing equivalent

amounts of interminable suffering, one with a short life expectancy (say, a pancreatic cancer

patient) and the other with many years ahead of her (an ALS patient for example), but only the

pancreatic cancer patient would be permitted to request this life-ending prescription under the

Oregon DWDA. Therefore, even if a person is suffering from an illness that is irreversible, if the

disease will not kill the patient imminently, then physician-assisted death is not a permissible

option under the Oregon law. In contrast, in the cases of physician-assisted death that would be

permissible by the Oregon Death with Dignity Act, the patient’s forthcoming death is an

unavoidable element of his condition. The six-month life expectancy qualification therefore

indicates that regardless of the level of suffering that a patient is experiencing, precautions must

be taken to avoid physician-assisted death from entering into the realm of the act of suicide as

committed by someone with a normal life expectancy.

A final element of the Oregon Death with Dignity Act that reveals the ethical motivations

underlying the legislation is the requirement that PAD-eligible patients must be proven residents

of Oregon. The reasoning behind this requirement might be an attempt by the lawmakers to keep

the state Oregon from becoming a destination for death by making it difficult for people to come

to Oregon for the sole purpose of dying. 24 Such a provision might serve to quell possible

concerns raised by the federal government about individuals from other states entering Oregon to

take advantage of this state-level law.25 The residency requirement responds to these concerns by

24 Of course, the law cannot completely avoid this, as it is possible for people to resettle in Oregon with

the intention of using physician-assisted death soon after. 25 Kathy T. Graham, “Last Rights: Oregon’s New Death With Dignity Act,” Willamette Law Review 31,

no. 3 (1995), 614.

21

acting as a logistical barrier. For, even if individuals from other states were to move to Oregon

and establish residency there, it is clear that establishing residency somewhere is a decision that

takes more time, thought, and planning than the decision to briefly visit a particular place. As

David S. Ford, spokesman for the San Francisco AIDS Foundation said in a 1994 interview with

The Oregonian, “I can't imagine that someone would want to pack up their belongings, close up

their apartment, leave their friends and move up to Oregon in order to establish residency and

find two doctors who will pronounce them as having six months to live – all in order to have a

doctor-assisted suicide.”26

Therefore, in putting the residency limitation in place, the Oregon legislation emphasizes

that the decision to request PAD ought not be made on a whim, and it also acts as a hurdle that

ensures that aside from Oregon residents who will face a number of other safeguards and filters

down the line, the only people who may begin the process of requesting PAD are those who have

put significant thought and effort into the decision to die. This residency requirement therefore

limits PAD eligibility to a small group of Oregon residents (whether they’ve already been

established residents or they’ve made the decision to become residents) who meet the specific set

of criteria that are outlined throughout the legislation—most significantly, the numerous

autonomy safeguards that I have detailed above.

The Dutch Suffering Basis

When considering the motivations behind the Dutch Termination of Life on Request and

Assisted Suicide (Review Procedures) Act, it is important to first mention that the requirements

included in the legislation apply for both the act of physician-assisted death (which the

legislation calls assisted-suicide), and euthanasia performed by a doctor. The Netherlands law

26 Spencer Heinz, “End Game,” The Oregonian, December 5, 1994.

22

makes no moral distinction between euthanasia and physician-assisted death, grouping them

together within the same piece of legislation. As I assess the Netherlands’ euthanasia law, I will

be arguing that the primary basis of the Dutch legislation is an attempt to avoid patient suffering,

which strongly contrasts with the Oregon autonomy-basis that we have just seen.

With regards to the characteristics that an eligible patient must have, according to the

Dutch law, any patient aged 12 years or older can be eligible for physician-assisted death or

euthanasia, although there are more safeguards for patients on the younger end of the spectrum.

In order to receive physician-assisted death or euthanasia by the Dutch Euthanasia Act, patients

ages 12 through 16 must have a consenting parent or guardian, and patients between 16 and 18

years of age must have a parent or guardian at least consulted. Philosophically, it seems that if

the law states that a parent ought to be consulted, this would imply that a patient under the age of

18 is viewed as incapable of making a fully autonomous decision that carries legal weight. For,

even in the case of a patient between 16 and 18, if no guardian is available for consultation, there

is no weight given to her decision to die.

The details of this age requirement imply that in the view of the Dutch law, a legal

minor’s decision, absent of parental consultation, is not enough to make PAD or euthanasia

permissible. It might therefore be inferred that so long as parental consent or consultation is

required, a patient is not viewed as autonomous enough to make a decision independently. This

is an interesting point of distinction, because whereas the Oregon statue would never permit a

less-than-capable patient to make the decision to undergo PAD, the Dutch law does permit such

a decision, as long as it is bolstered by parental consent or consultation.

Another important note on the Dutch legislation is the strong emphasis that the law places

on the suffering that the patient is undergoing. Interestingly, the Dutch law makes no distinction

23

between short-term and long-term suffering as the Oregon law does. Regardless of the patient’s

life expectancy, as long as there is no chance for the patient’s condition to improve, a hopelessly

suffering patient can be legally eligible for physician-assisted death or euthanasia. This detail

reveals the essential role that patient suffering plays in the Netherlands law. For, an eligible

patient’s suffering does not necessarily have to be accompanied by imminent death, but even

prolonged suffering with no chance of improvement makes one eligible for PAD or euthanasia in

the Netherlands. The Netherlands is therefore more concerned with the patient’s degree of

suffering than with the patient’s particular physical condition and the life expectancy that is

associated with such a condition.27 This focus on the degree of patient suffering is revealing of

the motivations behind the Dutch law. In particular, it seems as though according to the

Netherlands legislation, a key philosophical basis of euthanasia and physician-assisted death is

the avoidance of patient suffering, even if this means ending a patient’s life at a point much

earlier than death would have naturally occurred.

With regards to the type of suffering that a patient must be experiencing in order to be

eligible for physician-assisted death or euthanasia in the Netherlands, the Dutch legislation has

an expansive definition of suffering that extends beyond just physical suffering. The Netherlands

euthanasia law doesn’t include a depression or mental illness safeguard as the Oregon law does.

In this way, the Dutch legislation does not limit eligibility for physician-assisted death and

euthanasia to only those people who are experiencing physical suffering. Rather, it expands its

definition of suffering to include mental suffering as well. A 1994 Oregon newspaper references

the Netherlands’ wide definition of suffering, mentioning the 1993 Dutch case in which “a court

of three judges acquitted a psychiatrist in the assisted suicide of a physicially [sic] healthy but

27 The avoidance of patient suffering is consistently mentioned as a key element of the Dutch debate over

PAD and euthanasia. See Raphael Cohen-Almagor's article “Why the Netherlands?”

24

emotionally disturbed woman grieving over the death of her two sons.”28 This broad definition of

suffering further reveals the Netherlands’ strong emphasis on the value of avoiding patient

suffering of all types.

Although suffering seems to be the key basis of the Netherlands legislation, the law does

not fail to mention patient autonomy. The Dutch law requires that the patient fully understand

her condition and prospects, which ensures that the patient is knowledgeable enough to make an

autonomous decision that is also informed. This requirement, however, may not reveal a

significant value of autonomy, but is rather in line with general consent requirements for medical

procedures in the Netherlands, which are outlined in the Dutch Medical Contract Act.29 Buiting

et al. mention the common Dutch requirement that the patient fully understand her situation and

prognosis, which is part of the country’s normal medical practice.30 Therefore, although the

Netherlands legislation does incorporate the value of autonomy, it does not emphasize this value

any more significantly for cases of PAD and euthanasia than it does with most other medical

procedures, where informed consent rules require some degree of patient autonomy, in that they

similarly demand that the patient fully understand her condition and prospects.

Another important requirement of the Netherlands legislation is the requirement that the

patient initiate the request to die on her own, which seems to be an attempt to keep other forces

from interfering with the patient’s autonomous decision to die. It is, however, difficult to place

this requirement as definably autonomy valuing or suffering valuing. Given the important

decision-making role that this requirement gives to the patient, it appears as though this

28 Mark O’Keefe, “Dutch Courts Provide Loophole for Doctors,” The Oregonian, December 19th, 1994. 29 Ewoud Hondius and Annet Van Hooft, “The New Dutch Law on Medical Services,” Netherlands

International Law Review (1996). 30 Hilde Buiting, Johannes Van Delden, Bregje Onwuteaka-Philpsen, Judith Rietjens, Mette Rurup,

Donald Van Tol, Joseph Gevers, Paul Van Der Maas, and Agnes Van Der Heide, “Reporting Of

Euthanasia And Physician-assisted Suicide In The Netherlands: Descriptive Study,” BMC Medical

Ethics 10, 8.

25

requirement reflects the value of patient autonomy, but it very well may be that this actually

shows a valuing prioritization of patient suffering. For, this patient-initiated request requirement

emphasizes the fact only the patient can know and evaluate the degree of her own suffering, and

such an important evaluation should not be tainted by other opinions.

A final important element of the Dutch euthanasia legislation is that although the law

does not have a residency requirement like Oregon does, it does require that there be a well-

established doctor-patient relationship in cases of physician-assisted death and euthanasia.31 This

requirement is believed by the legislatures to similarly keep the Netherlands from becoming a

death destination, as many opponents of physician-assisted death fear. It therefore seems that in

outlining the due care requirements that imply a close and well-established doctor-patient

relationship, the Netherlands legislation is crafted for a specific group of physician-patient pairs

with preexisting clinical relationships. Thus, the Netherlands puts safeguards in place to avoid

abuse of the euthanasia act, but the act’s overall motivations seem closely tied to an avoidance of

pain and suffering, all within the boundaries that the act puts in place.

Comparison: Oregon’s Autonomy Basis Versus the Dutch Suffering Basis

In comparing the motivations behind the Oregon Death with Dignity Act and the

Netherlands Termination of Life on Request and Assisted Suicide (Review Procedures) Act, a

few major points of distinction arise. In particular, it seems as though the key motivation behind

the details of Oregon’s physician-assisted death laws are an intention to protect patient

autonomy, a motivation which is more secondary in the Netherlands legislation. Oregon’s

31 Netherlands Ministry of Foreign Affairs: FAQ – Euthanasia 2010: The Termination of Life on Request

and Assisted Suicide (Review Procedures) Act in practice. http://www.patientsrightscouncil.org/site/wp-

content/uploads/2012/03/Netherlands_Ministry_of_Justice_FAQ_Euthanasia_2010.pdf.

26

autonomy emphasis can be seen through the requirement that the patient make multiple requests

for a lethal prescription over an extended period of time. This autonomy basis is also revealed

through the requirement that a patient’s depression not be influencing his decision to die, and the

repeated insistence that a patient be “capable” and that his request is “voluntary.” Furthermore,

the many technical safeguards that the Oregon DWDA puts in place—such as the age minimum

of 18 years and the residency requirement—reveal the Oregon legislation’s significant emphasis

on the protection of patient autonomy.

The requirements surrounding the type of pain and suffering that the patient is

undergoing seem, in the case of the Oregon laws, to be secondary to the requirements related to

the patient’s level of autonomy. For, the Oregon legislation does not include suffering from

depression as a type of suffering that could necessitate PAD, and it instead views it as a possible

interference with autonomy, prioritizing this possible interference over the possibility that mental

suffering might warrant a need for PAD. Thus, this fear that mental illness might interfere with

autonomy reveals that a respect for patient autonomy is the driving force of the Oregon

physician-assisted death legislation.

On the other hand, an avoidance of suffering seems to be the key motivation underlying

the Netherlands PAD and euthanasia legislation. This can be seen by the fact that whereas the

Oregon legislation requires that a patient be suffering from an illness that will kill him within six

months, the Netherlands’ Euthanasia Act permits physician-assisted death or euthanasia for

people who will be experiencing irreversible suffering, regardless of the life-expectancy

associated with the condition. It seems to be that the primary goal of the Dutch euthanasia

legislation is to provide an opportunity for relief for those who are experiencing suffering, be it

near-death suffering or a more extended span of suffering.

27

Further revealing that suffering is the leading basis for the Netherlands legislation is the

fact that the Netherlands doesn’t set up any safeguards for depressed or otherwise mentally

impaired patients as the Oregon law does. Rather, the Netherlands defines suffering as widely as

possible, not limiting the eligibility standards to only those undergoing physical suffering. The

Netherlands’ lack of these two safeguards—on mentally ill patients and on patients who will be

suffering indefinitely—reveal its expansive definition of suffering and its valuing of an

avoidance of suffering over other values such as autonomy.

Another strong point of distinction between the Netherlands euthanasia and PAD laws

and the Oregon physician-assisted death legislation are their contrasting treatments of the ages of

eligible patients. For the Netherlands, there are age windows at which the patient is not legally

able to make the decision to die without parental consultation or consent, and this implies that

the Netherlands law recognizes a lack of decision-making autonomy for patients between the

ages of 12 and 18, and for this reason requires parental involvement. In permitting these

decisions to be made with parental consent, the Dutch legislation permits patients who are not

viewed as fully autonomous to request PAD or euthanasia. In contrast, the Oregon legislation

only allows an individual to request a life-ending prescription once he is at an age where parental

consent would not be required for legal decision-making. This point of distinction might suggest

that the Oregon legislation takes greater measures to ensure that a fully autonomous decision to

end one’s life is being made, avoiding any possibility of PAD for someone who has not reached

the age of full autonomy, even with parental consent.

Thus, in assessing each piece of legislation, as well as some of the surrounding public

debates, it is clear that these two distinct themes arise in each policy. Whereas the Oregon Death

with Dignity Act is ultimately focused on a respect for patient autonomy, the Netherlands

28

Termination of Life on Request and Assisted Suicide (Review Procedures) Act is driven by an

attempt to avoid patient suffering at all costs. Hilde Buiting et al. point out this important

distinction in their study on the physician-assisted death reporting practices in the Netherlands.

In comparing the American model with the legislation in selected European countries, the

authors note, “for the Dutch, Belgian and Luxembourg Acts, addressing the patient's suffering is

the most important principle underlying the Act. The Oregon and Washington Acts, on the other

hand, put emphasis on patients' rights and on helping patients to maintain control and

independence.”32 Having provided evidence for these two ethical motivations, we will see that

there is strong philosophical support for each of the distinct foundations that seem to drive the

Netherlands and Oregon legislations.

32 Buiting, et al., “Reporting of euthanasia and physician-assisted suicide in the Netherlands: descriptive

study,” 3.

29

VI. Autonomy Versus Suffering: Characterizing the Accounts

Thus far, I have shown that the Oregon and Netherlands physician-assisted death and

euthanasia legislations are based in these two distinct philosophical foundations: Oregon, on a

respect for patient autonomy, and the Netherlands, on an avoidance of patient suffering. Having

identified these contrasting bases, I will now begin expanding upon the details of these two

philosophical values, and exploring their uses as ethical foundations for opinions on the issue of

physician-assisted death. In approaching this comparative philosophical examination, it will be

necessary to briefly distinguish between the autonomy basis for physician-assisted death and

what I will call the suffering basis for physician-assisted death. Before characterizing these two

accounts, it is important to note that both the suffering-based account and autonomy-based

account contain philosophical motivations that could be used to argue in support of a whole set

of life-ending acts beyond just physician-assisted death. However, because my ultimate policy

discussion is framed around PAD33, this is the practice that I will refer to in characterizing the

autonomy-based and suffering-based accounts.

On the autonomy-based account of physician-assisted death, PAD should be legally

permissible if and only if doing so furthers or respects autonomy better than a prohibition on

PAD. As we’ve previously seen, when it comes to clinical decision-making, a respect for

autonomy can be characterized by the attempt to ensure that treatment decisions made by an

individual patient are in line with that person’s fundamental values, uncoerced and undistorted

by external forces. Proponents of PAD who use an autonomy-based argument generally base

their arguments on the idea that an individual should have the right to determine the time and

manner of his own death, and therefore that prohibiting a person to make the decision to die

33 In my policy formation, I do suggest permitting euthanasia under some specific circumstances, but in

most cases, physician-assisted death is the treatment that my policy permits.

30

through physician-assisted death is an interference with that individual’s autonomy. This

argument is based on the idea that part of an individual’s self-determination and autonomy are

decisions related to the course of that individual’s own life and to the treatment of his body, and

thus a right to determine the time and manner of one’s death is a necessary part of autonomy,

included in the right to bodily self-determination.34

On the suffering-based account of physician-assisted death, PAD should be legally

permissible if and only if it is done as a means of avoiding patient pain and suffering in a manner

that other treatments could not. Those who argue in favor of physician-assisted death with a

suffering basis would claim that when a person is suffering with no relief, it is more

compassionate to let the patient end her life and put an immediate end to her pain than to force

the patient to continue suffering hopelessly. Therefore, as opposed to a respect for autonomy, the

driving force of these suffering-based accounts is the prioritization of an avoidance of misery and

pain. In valuing the avoidance of suffering above all, these suffering-based accounts are

generally founded in the philosophical principle of beneficence, which is described by the

Stanford Encyclopedia of Philosophy as the “moral obligation to act for the others’ benefit,

helping them to further their important and legitimate interests, often by preventing or removing

possible harms.”35 Proponents of this view might argue about the human responsibility to reduce

the harm experienced by other humans by acting with compassion toward those who are

experiencing pain. In addition, proponents of a suffering-based view of PAD might base their

34 Monika Ardelt, “Physician-Assisted Death,” C. D. Bryant et al. (eds.): Handbook of Death and Dying,

Volume One: The Presence of Death, Thousand Oaks, CA: Sage Publications, 425. 35 Tom Beauchamp, “The Principle of Beneficence in Applied Ethics.” Stanford University, January 2,

2008, http://plato.stanford.edu/entries/principle-beneficence/.

31

positions on beliefs about the physician’s responsibility to protect patients from experiencing

unnecessary pain and discomfort.36

36 Ardelt, “Physician-Assisted Death,” 425.

32

VII. Autonomy Versus Suffering: Two Philosophical Camps

Having provided the basic definitions of these two distinct ethical justifications of

physician-assisted death, I will now present in more detail some of the philosophical arguments

that have been used to support the autonomy-based and suffering-based accounts of PAD. It is

important to mention that some of these theorists place a value on both respecting patient

autonomy and avoiding patient suffering. But generally speaking, the primary foundations of the

particular arguments we will be discussing are either suffering or autonomy, and in this section I

will attempt to distinguish between these ethical approaches.

Furthermore, before delving into these philosophical accounts, I must mention that the

authors discussed in the following sections are not necessarily arguing in favor of the particular

policies of physician-assisted death and euthanasia that the Oregon and Netherlands legislations

permit. Nevertheless, the following accounts present arguments—based in either the value of

patient autonomy or the value of avoiding suffering—that serve as examples for possible

philosophical arguments that might be extended to support the treatments permitted in the pieces

of legislation that I address in this paper. Therefore, we will look at these philosophical

approaches to gain an understanding of what sorts of arguments can be made in support of the

autonomy-based and suffering-based accounts of physician-assisted death.

Autonomy-Based Accounts

From the start of the debates, a respect for patient autonomy has been a key value to back

arguments in favor of policies permitting physician-assisted suicide and euthanasia. As the

argument generally goes, an individual should have the right to autonomy and self-

determination, and with this right comes the freedom to make decisions about one’s own life and

body. According to this argument, a respect for an individual’s autonomy and self-determination

33

must therefore include a protection of the right to bodily self-determination and the included

right to determine the manner and time of one’s death.

In “Assisted Suicide: The Philosophers’ Brief,” which was submitted to the Supreme

Court before its rulings of the 1997 Vacco v. Quill and Washington v. Glucksberg cases, six

moral philosophers—Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, and Judith

Jarvis Thomson—put forth an argument in favor of physician-assisted death. This argument is a

strong example of the autonomy-centered argument for permitting physician-assisted death. In

the Brief, the philosophers convey their autonomy-based account of the issue in their

fundamental claim that each individual has a right to make the “most intimate and personal

choices central to personal dignity and autonomy.”37 According to the Brief, this right to make

such choices encompasses the right to exercise some control over the time and manner of one’s

death. Although the Court did not rule in accordance with the views set forth by the

“Philosophers’ Brief,” many thinkers who have written on the issue of physician-assisted death

and euthanasia provide autonomy-based accounts similar to the one presented in the Brief. These

philosophers make arguments along similar lines about the importance of a respect for

autonomy, which includes the right to make individual end-of-life decisions.

In his essay, “Voluntary Active Euthanasia,” the philosopher Dan Brock provides an

autonomy-based account of end-of-life decision-making. Although in this case, Brock is arguing

about voluntary active euthanasia rather than the particular act of physician-assisted death, he

emphasizes the necessity of respect for the self-determination of individuals, allowing us to

categorize his argument as autonomy-based. According to Brock, the granting of a competent

patient’s request to die is required by the duty to respect self-determination and autonomy. Brock

37 Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, and Judith Jarvis Thomson, “Assisted

Suicide: The Philosophers’ Brief,” http://www.nybooks.com/articles/archives/1997/mar/27/assisted-

suicide-the-philosophers-brief/.

34

stresses the importance of “people’s interest in making important decisions about their lives for

themselves according to their own values or conceptions of a good life, and in being left free to

act on those decisions.”38 Given this importance of self-determination, Brock argues about the

necessity that “individuals control the manner, circumstances, and timing of their dying and

death.”39 Therefore, Brock sees a respect for patient autonomy as central to the permissibility of

the euthanasia of competent patients who request it. This view might be more extreme than

autonomy-based arguments for the act of physician-assisted death as I have defined it, but if

Brock finds an autonomy basis for euthanasia, then we could certainly infer that this argument

would apply to the less contested act of physician-assisted death, which he views as morally

equivalent to both passive and active euthanasia.

It is important to mention that in his argument in favor of voluntary active euthanasia,

Brock also takes suffering into account, as he sees the relief of pain and suffering as an important

“good consequence” of permitting euthanasia. However, respecting autonomy takes on a much

more prominent role on Brock’s list of good consequences of permitting voluntary active

euthanasia, with the avoidance of suffering being emphasized less. As Brock says, the respect for

autonomy, coupled with the value of individual well-being, is “the central ethical argument for

euthanasia.”40 Thus, a respect for patient autonomy is the dominant ethical foundation of Brock’s

argument in favor of euthanasia, which he views as morally equivalent to passive euthanasia and

physician-assisted death.

Similar to Brock, Dr. Helga Kuhse argues for the permissibility of active voluntary

euthanasia, with a respect for the autonomy of a competent patient serving as the basis of her

38 Dan W. Brock, “Voluntary Active Euthanasia,” The Hastings Center Report, Vol. 22 (2); Mar-Apr

1992, 11. 39 Ibid. 40 Ibid.

35

argument. Kuhse proves the moral equivalence of killing and letting die, and in turn makes an

argument for the permissibility of both passive and active euthanasia for competent patients.

Kuhse’s argument for passive euthanasia, which she extends to apply to active euthanasia, is tied

with her belief in the importance of bodily self-determination with respect to the value of

autonomy.

A competent patient has an overriding interest in autonomy or self-determination. This

important interest is linked to an important legal right: the right to bodily self-

determination in health care. This involves the right to make the ultimate decision about

what will or will not be done to one’s body, and includes the right to accept or refuse

treatment—even life-sustaining treatment.41

This argument that Kuhse brings forth is a strong example of the common autonomy-based

arguments made in support of physician-assisted death and euthanasia. Based on the premise of

the importance of the individual’s right to self-determination and autonomy, these thinkers argue

for the importance of bodily self-determination, which should include the right to make decisions

about the time and manner of one’s death. On this basis, these philosophers argue that competent

patients should have the right to request physician-assisted death and euthanasia. Thus we can

see that the Philosophers’ Brief, along with the arguments made by Brock and Kuhse, reveal the

widely held view that a respect for patient autonomy should include a respect for a patient’s

decision to die. There are many other thinkers who would fall within this autonomy-based school

of thought, but these three examples can serve to present the arguments that are central to this

account of physician-assisted suicide.

Suffering-Based Accounts

In contrast with the autonomy-based account of physician-assisted death, there are a

number of thinkers who argue that avoidance of suffering is the primary rationale behind

41 Helga Kuhse, "The Case for Active Voluntary Euthanasia," The Journal of Law, Medicine & Ethics,

146.

36

granting patients the right to choose to die. These philosophers generally focus on cases in which

a patient’s quick death would involve less suffering than the continuation of life in that patient’s

current state of agony. Therefore, rather than focusing on an individual’s rights, these arguments

generally focus on the details of a patient’s current condition, and the differing consequences of

living and dying in light of this condition. These arguments generally find that if a patient’s

death would involve less suffering than the continuation of that patient’s life, then it is

reasonable and most reflective of the philosophical principle of beneficence to permit the patient

at hand to choose death over a continued life of misery.

The philosopher James Rachels emphasizes the supreme value of avoiding patient

suffering in his paper “Active and Passive Euthanasia.” Although the primary goal of Rachels’s

piece is to argue that killing is morally indistinguishable from letting die, in making this

argument, Rachels reveals his prioritization of the value of protecting patients from excessive

suffering. In making his argument for the moral equivalence of killing and letting die, Rachels

claims that there are cases in which the act of killing and letting die might both involve the

benevolent intention of putting a person out of his misery. Rachels argues that in many of these

cases involving benevolent motives, killing is morally better than letting die because it may

reduce a person’s suffering. Rachels brings the example of a patient dying of incurable throat

cancer, where withholding medical treatment would yield a slower and more painful death than

would active euthanasia. In cases like this one, he says, “the process of being ‘allowed to die’

can be relatively slow and painful, whereas being given a lethal injection is relatively quick and

painless.”42

42 James Rachels, “Active and Passive Euthanasia,” Killing and Letting Die, Bonnie Steinbock and

Alastair Norcross Ed., (New York: Fordham University Press: 1994), 113.

37

Although Rachels is making an argument here about active euthanasia being preferred to

passive euthanasia, we can apply his logic to the use of physician-assisted death, as it would have

the same benevolent motive, and would similarly be a means of putting a quick end to a person’s

misery. Rachels’s argument therefore implies that when compared to passive euthanasia, active

euthanasia and physician-assisted death show a greater respect for the qualities that make life

worth living, in that these acts often avoid unnecessary suffering, which no one should be forced

to undergo. Thus, in putting forth this deontological argument about the benevolent intentions of

avoiding suffering that drive these life-ending acts, Rachels conveys that an avoidance of

suffering is the main value to consider when it comes to end-of-life decision-making.

In addition to Rachels, doctors Timothy Quill and Robert Brody make a suffering-based

argument about a physician’s occasional obligation to aid patients’ deaths. Although this

argument is focused on a narrow set of death-causing acts—namely barbiturate sedation and the

refusal of life-sustaining treatment—the argument for these treatments is based on the principle

of avoiding patients pain and suffering. Therefore, it can be claimed that this suffering-based

account could extend to an argument for physician-assisted death, if we view PAD as morally

equivalent to the acts of barbiturate sedation and passive euthanasia, as many philosophers do.

Quill and Brody discuss their idea of a “good death,” which is defined in contrast with a death

that is filled with intolerable pain and suffering. The authors make arguments for two treatment

options which can serve to facilitate “good deaths,” namely the prescription of a pain relieving

medication at a high enough dosage to cause eventual death, and a patient’s decision to refuse

life-sustaining treatment. The authors’ argument in favor of these two treatments is largely

based on their assumption that an avoidance of patient suffering is the primary interest to

consider when making end-of-life decisions. In their conception of suffering, the authors take on

38

a wide definition that includes the emotional and existential pain that patients may face as they

approach death.

If we define suffering broadly enough, as we must, then we have to include the care

provider’s commitment to join the patient in confronting the existential, emotional, and

spiritual as well as the physical elements of suffering. It would be presumptuous and

absurd to believe that physicians or hospice staff members have the ability to resolve all

such issues. Many times, one of two dimensions of suffering dominate the patient’s

experience. Practitioners have an obligation to address each patient’s unique form of

agony, and to respond as best they can.43

Thus, although Quill and Brody do not explicitly argue in favor of the types of physician-assisted

death and euthanasia that we have described in relation to the legislation at hand, these authors

stand firmly in the school of thought that places an avoidance of suffering as the main value to

consider when making determinations about patients’ end-of-life decisions.

Another thinker who stands in opposition to the autonomy-based philosophers and

conveys something closer to a suffering-based account is J. David Velleman. Velleman makes a

strong argument against the typical autonomy-based justification for physician-assisted suicide,

claiming that giving a patient additional treatment options might have the effect of restricting

patient autonomy. Velleman’s main argument is that policies that allow for the possibility of

physician-assisted death or euthanasia actually interfere with patient autonomy because they

introduce an option that the patient may not have otherwise considered on her own. In

Velleman’s view, if a policy offers patients the option to die via euthanasia, then the patient

staying alive is no longer the default, and instead it is just one of a set of treatment options that a

patient may choose. In turn, according to Velleman, offering a patient the option to die not only

43 Timothy Quill and Robert Brody, “‘You Promised Me I wouldn’t die like this!’ A Bad Death as a

Medical Emergency,” Arch Intern Med, Volume 155 (June 26th, 1995), 1252.

39

shifts the choice to live away from being the default status, but to Velleman, “to offer the option

of dying may be to give people new reasons for dying.”44

Based on this argument against an autonomy-basis for a patient’s right to die, it might

seem that Velleman is completely opposed to any sort of right to die. But an important element

of Velleman’s argument is his claim that even after dismissing the autonomy-based account of

physician-assisted death policies, there might be a strong suffering basis for a patient’s right to

die. Velleman does not go as far as to argue for a legal protection of such a right, but he sees a

suffering basis as much more sound than an autonomy-based argument for a patient’s right to

request to die. He says: “A moral entitlement to be allowed to or helped to die is less likely to

flow from principles of autonomy or respect, in my opinion, than from principles of simple

benevolence. I strongly believe that a person’s life can sometimes be made worse by being

prolonged, and that a swift and painless death can then be a benefit.”45 Thus, although Velleman

does not argue in favor of a legal right to die, he does see a strong suffering basis for such an

argument, and he rejects the autonomy basis that many thinkers use.

I have therefore established that there is strong support for both the autonomy-based and

suffering-based accounts of physician-assisted death and euthanasia, as I have defined them.

These distinct sets of philosophical arguments can each provide ethical foundations for the

respective policies with which they align. We can place the writers of the “Philosophers’ Brief,”

Kuhse, and Brock in a set of voices that might back an argument in favor of Oregon’s autonomy-

based physician-assisted death legislation, and conversely we can place Rachels and Quill and

Brody in the school of thought that would support the Netherlands’ suffering-based physician-

assisted death and euthanasia policy. Although Velleman would likely oppose any sort of

44 J. David Velleman, “Against the Right to Die,” The Journal of Medicine and Philosophy. Volume 17

No. 6. (December 1992), 676. 45 Ibid., 667.

40

physician-assisted death or euthanasia legislation, it seems as though based on his fears about an

autonomy-basis and his emphasis on the importance of benevolence and avoiding pain,

Velleman would have a greater respect for the Dutch suffering-based account of PAD and

euthanasia than he would have for Oregon’s autonomy-based account of PAD.

41

VIII. Assessing the Autonomy Account

With the arguments of these thinkers in mind, I will now assess the autonomy and

suffering bases for physician-assisted death legislation in greater detail. I will examine the

advantages and disadvantages of each of these accounts in order to ultimately formulate a hybrid

approach that draws from elements of both the autonomy-based and suffering-based accounts of

physician-assisted death. I will ultimately argue that this hybrid approach provides a

philosophical framework for physician-assisted death and euthanasia legislation, which is

superior to either the autonomy foundation or the suffering foundation on its own.

Advantages of an Autonomy-based Account

A key advantage of an autonomy-based approach to physician-assisted death is that a

respect for autonomy with competency requirements protects vulnerable patients who are not

suited to make autonomous decisions. In Section V, I defined autonomy as a capacity to make

one’s own decisions according to one’s own fundamental values and uncoerced by any

manipulating external forces. In line with this definition, we might claim that an argument for

PAD that is based on the value of patient autonomy would likely call for PAD legislation that

only qualifies capable decision makers as eligible to request PAD, excluding those with

unsatisfactory levels of autonomy. In this manner, such an autonomy requirement would protect

groups such as infants or mentally incompetent patients, as they would not be considered capable

enough to be legally permitted to request PAD. If we were to instead use suffering as the sole

framework, then babies or mentally incompetent patients might have an easier time being

permitted to use PAD, despite their lack of decision-making capabilities.46 As we will soon see,

46 Of course, infants would not reasonably be able to request and utilize PAD, but we use infants as an

example of a group that would theoretically be protected by autonomy requirements. This argument could

42

there might be cases in which there is a strong enough suffering basis for permitting infants or

mentally incompetent patients to use PAD or euthanasia, but my focus right now is on the

protective advantage of an autonomy basis. With an autonomy basis in place, we would ensure

that these life and death decisions are only made by patients who are fully capable of making

them, thereby protecting those individuals who are unable to make autonomous decisions about

the courses of their lives.

There are certainly points of difficulty that can be raised against this argument for an

autonomy-based approach to physician-assisted death. Firstly, one might question the role of the

parent or guardian in decision-making, and whether they should be making decisions based on

thoughts about the present or future autonomy of the currently incapable or incompetent

individual. In response to this argument, we might return to a point that was made about the

Netherlands’ age requirement, which allows patients below the age of 18 to request PAD or

euthanasia with parental consent or consultation (depending on the specific age). I showed in

Section V that any such parental consent requirement affirms the fact that the patient at hand is

not autonomous enough to make a given decision on her own. Although there are certainly cases

in which a parent should be able to assist with a child’s treatment decision, the decision of when

to end one’s life is so entwined with that individual’s own self, that in general the highest degree

of respect for autonomy must be met in legalizing such a decision.47 There might be cases in

extend for small children or adolescents who are below the age at which we consider patients to be

autonomous. 47 There are also cases in which patients have signed advanced directives to inform future treatment

decisions. For instance, consider a case in which a previously competent adult loses mental competency

and therefore loses her status as an autonomous decision maker. With an advance directive in place, we

might allow the patient’s family member to consent to the treatment indicated in the directive, because the

treatment at hand had been chosen by the patient at a time when that patient was autonomous. However,

here we are only referring to cases in which advanced directives have not been issued, in which a patient

is incapable, and the parent or guardian would be the sole decision maker, with no assurance that the

medical decision is one that the patient would have made autonomously.

43

which suffering is so severe that we would leave these decisions to a parent or guardian, on a

suffering basis, but such assessments should be made on an individual basis, depending on the

patient’s degree of suffering, as I will soon discuss.

Another point of difficulty with this advantage of the autonomy-based account is the

question of borderline cases, in which it is difficult to determine whether an individual has the

level of autonomy that is required for medical decision-making. This concern is particularly

relevant in the case of adolescents, an age group whose degree of autonomy might be debatable.

This issue was recently disputed with regards to Belgium, when the country extended its

euthanasia laws to include terminally ill and suffering children.48 In response to this point of

difficulty, it can be argued that for cases in which levels of autonomy are difficult to establish, an

ideal policy should require that the patient meet a high standard of suffering, to ensure that

physician-assisted death is a reasonable treatment option, given the undisputable degree of

suffering that the patient is experiencing. Perhaps such a policy should require even higher

standards of suffering levels for patients who are clearly not autonomous, like infants and

individuals with severe mental disabilities, two groups that I have previously mentioned. For, a

simple autonomy-based account would discriminate against these borderline autonomous and

non-autonomous patients by disqualifying them from the option of PAD, and it is therefore

important to incorporate the value of avoiding suffering in order to include these patients whose

levels of suffering might reasonably necessitate PAD. In Section X, I expand upon the manner in

which I incorporate the value of suffering in these cases where patients are lacking in autonomy.

A second key advantage of the autonomy-based argument for physician-assisted death is

the importance of patient autonomy to the physician-patient relationship. If we were to disregard

48 Damien Carrick, “Euthanasia for children expands legal debate in Belgium,” February 19th, 2014,

http://www.abc.net.au/radionational/programs/lawreport/5269980.

44

patient autonomy in cases of PAD, then this could certainly open the door for a more

paternalistic model of the doctor-patient relationship. Allen Buchanan and Dan Brock argue

about the need for patient decision-making autonomy, claiming that the views of a capacitated

patient who has the reasoning capabilities to make a rational choice ought to be respected by

physicians. As a basis for their argument, Buchanan and Brock emphasize that permitting

capacitated patients to make autonomous treatment decisions is required by the values of

individual self-determination and well-being. They argue against a more paternalistic model in

which a physician is the sole medical decision maker, claiming that such a model infringes on

these values.

Whether a certain treatment would be in the best interest of the patient depends not only

upon the medical effects of treatment but also upon the relationship between those effects

and the interests and previously expressed values of the patient. Physicians’ professional

expertise makes them more knowledgeable about the former, but not about the latter.49

In this manner, because the physician’s knowledge is limited in the realm of moral decision-

making, a non-paternalistic model of the physician-patient relationship that values patient

autonomy is required in order to protect patients’ self-determination and well-being.

Disadvantages of an Autonomy-Based Account

Despite the benefits I have just laid out, there are significant drawbacks that might come

along with a PAD legislation that is solely based on a respect for patient autonomy. One key

disadvantage of the autonomy-based account is the slippery slope concern, which a person might

use to argue that if we hold autonomy as the central value of the physician-patient relationship,

then this might pave the way for physicians to permit patients to make other, unwise treatment

decisions, out of respect for patient autonomy. As we saw earlier, the decision to request

49 Allen Buchanan and Dan Brock, Deciding for Others: The Ethics of Surrogate Decision Making, 1

edition, (New York: Cambridge University Press, 1990), 140.

45

physician-assisted death in the case of unbearable and interminable suffering cases is generally

viewed as well reasoned and rational. However, a patient might make a similarly autonomous

request for treatments that are viewed as less rational, despite being in line with his fundamental

values. Dan Brock and Steven Wartman explore this issue of competent patients making

irrational decisions.

When the physician properly judges a patient’s treatment choice to be irrational, attempts

to change that choice through persuasion are common and proper. Noncoercive and

nonmanipulative attempts to persuade patients of the irrational and harmful nature of

their choices do not violate their right of self-determination. Instead, they reflect an

appropriate responsibility and concern for the patient’s well-being.50

As Brock and Wartman explain, there are certainly cases in which a respect for patient autonomy

might lead a physician to permit a patient to make an unwise treatment decision, and for this

reason we might argue that it is difficult to claim that a respect for autonomy should be the only

value to inform medical decision making. Other values brought forth by these authors—like the

doctor’s responsibility to ensure that patients are acting in their best interests—must also come

into play, even as we hold patient autonomy to be a core value.

Another disadvantage of a PAD legislation based only on the philosophical foundation of

a respect for patient autonomy is the difficulty that might come along with attempting to classify

a patient’s decision as fully autonomous. Although a patient’s decision might appear to be

autonomous if it seems to be in line with the patient’s said values and appears to have been

arrived at with no overt third party coercion, there might certainly be concerns that a patient has

been indirectly coerced to a certain extent. Many authors who have written about physician-

assisted death, especially those who argue against it, fear that individuals undergoing

interminable suffering might choose PAD because of fears of becoming financial or emotional

50 Dan W. Brock and Steven A. Wartman, “When Competent Patients Make Irrational Choices,” The New

England Journal of Medicine, Vol. 322 No. 22 (1990), 1596.

46

burdens on their families. Coercion is certainly difficult to measure, and many thinkers fear that

irreversibly ill patients might feel obligated to choose death, with such a felt obligation being a

possible interference with patient autonomy. Yale Kamisar, an opponent of legalized physician-

assisted death and euthanasia, brings forth this type of argument against euthanasia legalization,

asking about the potentially coercive consequences of such legislation. “Will not some feel an

obligation to have themselves ‘eliminated’ in order that funds allocated for their terminal care

might be better used by their families or, financial worries aside, in order to relieve their families

of the emotional strain involved?”51 Thus, some might object to an autonomy-based argument in

favor of PAD by claiming that it is difficult to determine whether a decision is fully autonomous,

when other, less directly coercive factors—such as the fear of emotionally or financially

burdening one’s family—might affect a patient’s clinical decision-making process.

This disadvantage related to the possibility of indirect coercion is one of the many

reasons to call for a hybrid philosophical approach to PAD that values both a respect for patient

autonomy and an avoidance of suffering. For, if in these cases we value suffering in addition to

autonomy, we would be able to ensure that the patient has significant reasons for requesting to

die, aside from not wanting to be a burden. Such reasons would likely be tied to the patient’s

condition of intense physical or emotional suffering, which would take into account the quality

of the patient’s life, as opposed to just a respect for his bodily self-determination. A hybrid

approach might then yield a policy that permits PAD for severely suffering patients, despite their

lower autonomy levels (for instance, infants and mentally incompetent individuals). With this in

mind, in the following section I will discuss the advantages of valuing the avoidance of suffering

when it comes to PAD decisions.

51 Yale Kamisar, “Some Non-Religious Views against Proposed ‘Mercy-Killing’ Legislation Part 1,”

University of Michigan Law School Scholarship Repository (1976), 80.

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2065&context=articles.

47

IX. Assessing the Suffering Account

An alternative to the autonomy-based account of physician-assisted death, the suffering-

based account that supports the Netherlands’ euthanasia act has advantages and disadvantages of

its own. These benefits and downsides of the suffering-based account can be helpful in assessing

the possible consequences of an argument for PAD based purely on the philosophical principle

of beneficence, or an avoidance of patient suffering.

Advantages of a Suffering-based Account

An important advantage of the suffering-based account of physician-assisted death is the

argument that in many cases, allowing a patient to die through physician-assisted death or

euthanasia is far more compassionate, and involves much less pain, than letting the patient die of

an excruciating terminal illness. Many thinkers use this compassion-based argument to lend

philosophical support to the acts of physician-assisted death and euthanasia. James Rachels, a

thinker who I have previously established as a proponent of the suffering-based account,

summarizes this beneficence-based argument by saying, “If a person prefers—and even begs

for—death as the only alternative to lingering on in this kind of torment, only to die anyway after

a while, then surely it is not immoral to help this person die sooner.” Rachels then quotes

journalist Stewart Alsop, who died of a rare type of cancer and wrote extensively about his

experience with terminal illness. Alsop, as quoted by Rachels, argues about the compassion

required in these futile cases, saying, “No human being with a spark of pity could let a living

thing suffer so, to no good end.”52 Rachels brings forth these suffering-based arguments in

presenting his justification for active euthanasia, and we might therefore conclude that this sort

52 James Rachels, “More Impertinent Distinctions and Defense of Active Euthanasia,” Killing and Letting

Die, Bonnie Steinbock and Alastair Norcross Ed., (New York: Fordham University Press: 1994), 148.

48

of argument for euthanasia—backed by the value of compassion for humans—can certainly be

used as an argument for the less extreme act of PAD.

I might also add to the compassion-based argument by discussing the role of a physician

as someone who is tasked not only to heal patients and attempt to extend their lives, but also to

protect patients from experiencing unnecessary pain and discomfort. An argument for PAD

based on an avoidance of patient suffering would remain in line with the view of the physician as

someone who works not simply to make patients live long lives, but also to avoid patients’

unnecessary agony. David Velleman brings forth this type of argument about the role of

medicine, saying “I believe that the proper goal of medical science is, not to prolong human life

per se, but rather to make human life better – often by prolonging it, of course, but also by

relieving pain, restoring function, or facilitating natural processes.”53 In many cases, this pain

relief and facilitation of natural processes might involve a quickened death assisted by a

physician, and therefore PAD can certainly be seen as a practice that is in-line with this view of a

physician’s role as a pain reliever.

Another advantage to the suffering-based account of physician-assisted death is that such

a basis can serve to avoid the fears about coercion that I have previously mentioned as a

disadvantage of the autonomy-based account of PAD. As discussed in the previous section, it is

difficult to assess whether a patient’s decision is truly autonomous and uncoerced, when fears of

becoming an emotional and financial burden on one’s family may very well be influencing a

patient’s decision to die. With suffering as a basis for PAD, we can avoid these concerns by

confirming that given a patient’s physician condition, it is reasonable to believe that suffering—

rather than the possible burden she is placing on her family—is the key factor informing the

patient’s decision to die. If the medical team can confirm that a patient is in a state of severe

53 Velleman, “Against the Right to Die,” 667.

49

suffering that can’t be relieved, then we would be able to ensure that a patient is choosing PAD

as a result of her condition, rather than out of fear of becoming a burden on her family.

Disadvantages of a Suffering-based Account

Along the lines of this advantage, and the possibility of ensuring that a patient is

undergoing a degree of suffering that would cause him to want to die, we might come across a

significant disadvantage of the suffering-based account. In particular, there might be great

difficulty that comes along with attempting to measure the extent of an individual’s suffering.

Suffering is subjective by nature, as it is a physical feeling experienced by an individual that can

manifest itself in an individual’s emotional state as well. It might therefore be difficult to

distinguish between and weigh the relative importance of a patient’s physical and emotional

suffering. This disadvantage might certainly bring about questions about whose view of suffering

should govern the decision to use PAD—an individual’s view about his own suffering, or a more

“objective” third party view of that individual’s degree of suffering. When it comes to forming a

PAD policy, perhaps this disadvantage is one place where I will need to introduce the value of

autonomy in cases where suffering is difficult to determine. Therefore, the proper procedure

would be something similar to what the Netherlands uses, where the patient must autonomously

initiate the request for PAD or euthanasia, given the degree of suffering that he is personally

experiencing, and only afterwards is his level of suffering assessed and confirmed by outside

parties. I also suggest the use of existing assessments in order to determine patients’ levels of

both physical and emotional suffering, as I will mention in Section X.

Another disadvantage of the suffering-based account of physician-assisted death is that

an account based solely on an avoidance of suffering might open the door to an argument in

favor of allowing the deaths of any suffering patients. For instance, if suffering is the primary

50

value informing decisions about PAD, then some might argue that this could lead to justifying

the deaths of all patients experiencing suffering, a group which might include terminally

suffering infants and mentally incompetent patients. These two groups would be particularly

vulnerable when it comes to this disadvantage, as their degrees of suffering would be difficult to

determine due to a lack of communicative abilities in the case of infants, and a general lack of

decision-making capacity in the case of mentally incompetent patients. We might fear that in

permitting death for members of these vulnerable groups who are unable to reliably convey their

levels of suffering, we would open the door for the deaths of individuals in these groups who

would not have desired to die, but are incapable of understanding and communicating their

desires. For this reason, I will require a narrowly defined, high standard of suffering for these

vulnerable patients, to ensure that even without meeting certain autonomy standards, these

patients can use PAD or euthanasia in cases of extreme degrees of suffering. In this manner, this

concern can be alleviated by the introduction of a hybrid philosophical approach that values not

only an avoidance of suffering, but the autonomy of the patient as well, requiring higher

suffering standards when autonomy is lacking. We will explore the details of such an approach in

the next section.

A final point of difficulty that is worth mentioning when it comes to the suffering-based

account of PAD is the question of suffering in the context of temporary or potentially treatable

conditions. If we consider an avoidance of suffering to be our only basis for PAD, some might

fear that a patient undergoing temporary suffering might be permitted to use PAD. It is important

to note that for this reason, we must not only consider that the patient is suffering, but that a

patient is undergoing unrelenting—not temporary—suffering. Therefore, the full rationale that

must be included in this suffering-based account is not just suffering, but unavoidable suffering

51

with no hope of relief. This is the type of language that we see in the Netherland’s, and certainly

in Oregon’s legislation, and it seems as though this qualification would be necessary in order to

avoid wrongful uses of PAD that disrespect autonomy. This last point of difficulty is therefore

another one of the many concerns that can be avoided through the introduction of autonomy. For,

in line with my original definition of the term, the value of autonomy requires that the decision to

die is not a momentary preference, but rather, a long-standing decision that remains aligned with

an individual’s core values over an extended period of time. Thus, in cases where the highest

standards of suffering are not met, I will suggest relying on the strictest autonomy requirements

to ensure that a patient’s decision is truly in line with his values, and not clouded by severe, yet

temporary suffering.54

54 There are certainly difficult cases in which patients might be severely suffering for a long—yet

temporary—period of time, such as the case of Dax Cowart, but these cases require further discussion that

is beyond the scope of this paper. Cowart was forced to undergo excruciating treatments for severe burn

injuries, despite insisting that he wanted to die and refusing to consent to these treatments, all while he

was deemed competent. Cowart later healed, but has remained outspoken about his right to die, which he

felt was undermined by his medical staff. See Dax Cowart and Robert Burt. “Confronting Death: Who

Chooses, Who Controls?” Hastings Center Report, Vol. 28, No. 1 (1998), 14-17.

52

X. Towards a Hybrid Philosophical Approach

Against the backdrop of the advantages and disadvantages that would come along with

creating a physician-assisted death policy based in either an autonomy-based or suffering-based

philosophical foundation, there is significant reason to argue that ideal PAD legislation should be

grounded in a hybrid philosophical approach, one that gives both autonomy and suffering

significant weight. In crafting my hybrid approach to PAD, I will attempt to incorporate the

advantageous elements of both the Netherlands’ suffering-based account of PAD and euthanasia,

and Oregon’s autonomy-based account of PAD. For, given that each of these policies are based

in the sound philosophical motivations of either suffering or autonomy, it is reasonable to draw

from both pieces of legislation in order to incorporate elements of both the autonomy-based and

suffering-based accounts. My suggested policy permits physician-assisted death, and in some

cases euthanasia, depending on the individual’s level of autonomy and the severity and form of

his suffering.

Before introducing my suggested policy, it will be important to return to the main

features that comprise the two policies upon which mine is based: the Oregon Death with

Dignity Act and the Dutch Euthanasia Act. The Oregon DWDA allows competent, proven

Oregon residents (18 years or older) to initiate requests for lethal prescriptions if they are

suffering from a terminal disease that will kill them within six months. The patient must make

two voluntary requests spaced at least 15 days apart, and a second physician must also confirm

the patient’s condition and diagnosis. In addition, the physician must fully inform the patient of

his current condition and of every possible alternative treatment option. Furthermore, two

witnesses must confirm the patient’s request, and if the patient is suffering from a mental

53

disorder that might be impairing his decision, he must be referred to a psychiatrist for further

evaluation.

According to the Dutch Termination of Life on Request and Assisted Suicide (Review

Procedures Act), physicians can not be punished for providing patients with euthanasia or PAD

prescription as long as they have submitted reports proving that the patient (1) is experiencing

unbearable suffering with no hope of improvement, (2) has made voluntary and persistent

requests, and (3) fully understands her condition. Furthermore, according to the Dutch law, the

patient must be at least 12 years old, with parental consent being required for patients ages 12

through 16, and parental consultation required for patients between 16 and 18. The acting

physician must also consult a second physician to confirm that all of the criteria have been met,

and the patient’s death must be executed in a medically appropriate manner, with the physician

required to be present if the patient ends her life on her own. On the following page, I outline the

criteria which comprise my suggested policy, most of which are based on elements of the Oregon

DWDA and the Dutch Euthanasia Act.

54

Suggested PAD and Euthanasia Criteria

Figure 1 presents my suggested criteria for three distinct patient groups, which are distinguished

based on levels of decision-making competence.

Figure 1.

Category A Patients Category B Patients Category C Patients

1. Competence

Level

Fully Competent Borderline Competent Incapable of Medical

Decision Making

2. Competence

Assessor

Attending physician and

psychiatrist

Attending physician and

psychiatrist

Attending physician and

psychiatrist (in cases of

mental illness)

3. Requesting

Agent

Patient Patient with

parent/guardian consent

Surrogate and Advanced

Directive (if possible)

4. Treatment(s)

Permitted

Physician-Assisted Death Physician-Assisted Death Physician-Assisted Death

or Euthanasia

5. Suffering

Type

Irreversible and

interminable mental or

physical suffering with

no hope of significant

relief

Irreversible and

interminable physical

suffering with no hope of

significant relief

Irreversible and

interminable physical

suffering with no hope of

significant relief

6. Suffering

Assessment

Self-assessed through

MSAS and MQOL

scales; confirmed by a

physician and a

psychiatrist

Self-assessed through

MSAS and MQOL

scales; confirmed by two

physicians and a

psychiatrist; agreed to by

a parent/guardian

Assessed by two

physicians; agreed to by

surrogate

7. Request

Timeline

Two oral requests made

at least 15 days apart,

plus a written request if

possible

Two oral requests made

at least 15 days apart,

plus a written request if

possible

Two oral requests made

at least 15 days apart,

plus a written request if

possible (in cases where

surrogate is requesting

agent)

8. Physician

Requirements

Physician must

voluntarily agree to

provide the requested

treatment

Physician must

voluntarily agree to

provide the requested

treatment

Physician must

voluntarily agree to

provide the requested

treatment

9. Physician-

Patient

Relationship

Requirements

Well-established and

long-standing

Well-established and

long-standing

Well-established and

long-standing

55

As shown in Figure 1, I begin crafting my suggested policy by grouping eligible patients

into three categories, which are dependent on the individual patient’s level of autonomy. I

separate them in this manner so that in cases where autonomy is lacking, we can heighten

suffering requirements to ensure that the treatment decision is reasonable—even with lesser

levels of autonomy—given the patient’s extreme level of suffering. Therefore, although the

policy is framed around these patient categories that are established based on autonomy levels,

suffering is an essential part of my PAD and physician-assisted death requirements, as it is

required for all patient types. Furthermore, suffering is an essential requirement in cases of

patients with the lowest levels of autonomy, in which the value of avoiding suffering can

compensate for a lack of autonomy. I will begin explaining my recommended policy by detailing

the requirements that apply to all patient categories.

Requirement 7 | Request Timeline:

I adopt the timeline laid out in the Oregon Death with Dignity Act, which is reasonable in

requiring that the patient or decision-making agent must make two separate oral requests with a

significant amount of time between them, to ensure that the decision is not just a momentary

preference, but an autonomous decision that is in line with the patient’s firmly rooted values. For

cases of Category C patients, it is important to keep this request timeline in place to ensure that

in cases where the surrogate decision maker is requesting euthanasia, the surrogate’s decision is

not hindered by any momentary emotional stress that might come along with watching a loved

one suffer. Rather, I require that a surrogate’s decision remain consistent over time to ensure that

it is well reasoned and rational, and not a momentary preference distorted by emotional stress.55

To make review procedures simpler, I will also require a written request if possible. This request

55 Of course, the emotional stress that a surrogate decision maker undergoes might be affecting this

decision maker over time, but the request timeline requirement can ensure that no momentary heightening

in emotions would cause a lapse in judgment.

56

timeline requirement, on top of the physician-patient relationship requirements, both serve to

ensure that patients’ decisions are consistent over time and not just temporary.

Requirement 8 | Physician Requirements:

It is important that for all three patient categories, no physician can be forced to write a

prescription for a lethal agent (or in some Category C cases, to administer euthanasia). This

requirement, which draws from the text of the Oregon DWDA, is necessary in order to respect

the autonomy of the physician. I make the assumption that the existing medical regulations

would guarantee that physicians have the competence levels required to make these important

clinical decisions.

Requirement 9 | Physician-Patient Relationship Requirements:

Instead of using a residency requirement like the Oregon legislation has in place, I adopt

the Dutch requirement that the physician and patient have a long-standing and well-established

treatment relationship. This way, my policy can ensure that the attending physician knows the

patient well enough to understand the details of the patient’s physical and emotional condition,

and to confirm that the patient’s request is in line with his core values and his medical history,

ensuring that it is a truly autonomous request. For Category C patients, it is similarly important

that the physician know about the patient’s condition and the fundamental values at hand,

whether those are the values that the patient had at a time when he was autonomous, or the

surrogate decision maker’s views about what the patient might have wanted or what would be

best for the patient. In requiring this deeply rooted relationship, this feature establishes a more

thorough safeguard than a simple residency requirement would provide.

57

Having gone over the requirements that apply across the board for all three of the patient

categories that I’ve established, I will now detail the distinctions that I make between the

required PAD and euthanasia requesting processes for the three categories of patients.

Requirements for Category A Patients:

Patients in Category A, who are considered to have full competence, are adults aged 18

and older who have been deemed capable of making end-of-life treatment decisions on their

own, having been evaluated by an attending physician along with a psychiatrist in order to

confirm that these patients have met the necessary competence level. In order to make such

assessments, psychiatrists might follow the Oregon guidelines of ensuring that requests patients

are “capable,” and that their requests are “voluntary.” In terms of suffering types, the PAD

requests initiated by Category A patients may be approved if the patient at hand is undergoing

interminable and irreversible suffering with no hope of significant relief. This might include

mental or physical suffering that the physician and psychiatrist have confirmed to be irreversible

and interminable. This would mean that if a Category A patient was suffering from a potentially

treatable mental disorder like depression, the psychiatrist must first attempt treatment and only

permit PAD requests once it has been confirmed that the patient’s condition can’t be improved

with treatment.

Because patients in Category A have the highest levels of competence and autonomy, I

incorporate the expansive and inclusive view of suffering that is utilized by the Netherlands

legislation. In assessing the suffering of these patients, I suggest weighing both mental and

physical suffering. I distinguish between these suffering types depending on how the patient

experiences this suffering, with mental suffering causing trauma to a patient’s emotional and

58

mental state, and physical suffering being experienced primarily through bodily pain.56 I suggest

using assessments such as the Memorial Symptom Assessment Scale (MSAS) and McGill

Quality of Life Questionnaire (MQAL)57, which can allow patients to report their levels of

physical and mental suffering. I trust that with well-established physician-patient relationships,

the physician would be able to confirm the validity of a patient’s self-reported suffering, given

his knowledge about the patient’s history and current condition. If the patient’s suffering is of

the mental or emotional form, then the psychiatric evaluation, combined with the physician’s

intensive knowledge of the patient, would similarly ensure that physician-assisted death is a

reasonable treatment option for the requesting Category A patient.

Requirements for Category B Patients:

Patients in Category B are considered to have moderate or borderline levels of autonomy,

and for these patients, I adjust my suffering requirements to make sure that even with lesser

autonomy levels, PAD can still be a reasonable treatment decision, given the degree of the

patient’s suffering. Examples of Category B patients might be adolescents suffering from

terminal illnesses, or individuals with mental disorders that are not severe enough to deem them

incompetent. Of course, when it comes to mental disabilities, it is difficult to determine which

cases fall into this “borderline” category, but I believe that this should be left to the discretion of

the treating psychiatrist and physicians (one of whom would know the patient quite well). I will

allow these patients in Category B to assess their own suffering with the MSAS and MQAL

scales after initiating their requests for PAD.

56 Of course, these suffering types are closely linked. For, pain with a bodily source can often cause

serious emotional trauma. However, in classifying a patient’s suffering, I suggest attempting to determine

whether a patient’s pain is experienced more strongly as a physical or mental phenomenon. 57 See appendices for more information on these assessments.

59

In addition, because of fears about the lesser levels of patient autonomy, I suggest relying

on the opinions of two physicians (one of whom has a well-established treatment relationship

with the patient) and one psychiatrist, as a way of confirming that given the patient’s condition,

the patient’s suffering is severe and irreversible to the extent that physician-assisted death is the

most reasonable treatment option. Furthermore, similar to the Dutch legislation, I will require the

written consent of a parent or guardian when it comes to Category B patients in order to

recognize and compensate for the fact that these patients are not fully autonomous medical

decision makers. These extra safeguards of an additional physician and parental consent

requirement are attempts to distinguish between the management of cases of clearly competent

patients and those cases of patients whose competence levels might be questionable.

Of course, there might be cases in which there are conflicts between the opinions of the

physicians, psychiatrist, and parent or guardian. These cases are especially difficult, and I would

argue that they should not go forward due to the inconsistencies between the opinions of the

decision makers, whose opinions should all hold significant value. There might certainly be

cases in which not bringing these cases forward could mean a patient’s continued suffering, but

out of respect for all of the decision-making parties, I can’t reasonably conclude that one of these

opinions should be given more weight than another. There is certainly room for further

discussion on this question, but in crafting a policy, it is of utmost importance to maintain a

respect for all of the decision-making parties for which the policy applies.

I also require that at least some part of the suffering experienced by patients in Category

B be interminable physical suffering, because the medical team might not be able to fully rely on

these patients’ self-reported mental states due to their lack of competence. Physical suffering

would hopefully be more easily assessed and confirmed by third parties (physicians, a

60

psychiatrist, and a guardian), as opposed to mental suffering, which might be difficult to assess

when it comes to patients who are lacking in competence. Of course, many of these patients

would be experiencing both mental and physical suffering, given their agonizing conditions, but

I require that some element of the suffering be physical in order to make the assessment more

reliable. This higher suffering standard can quell fears about these patients’ lack of decision-

making autonomy, in order to ensure that even with lower levels of autonomy, these patients are

suffering to a degree so extreme that physician-assisted death is a reasonable and rational

treatment option.

Requirements for Category C Patients:

Category C patients possess the lowest level of autonomy, and therefore their end-of-life

decisions are made by legally appointed surrogate decision makers, or by the instructions of an

advanced directive if one was put in place at a time when the patient was fully autonomous (for

instance, a previously competent patient who has severe brain damage that has made him

mentally incompetent). Because this category includes patients who would likely be unable to

administer their own lethal medication, I include euthanasia as a possible treatment for patients

in this category in order to provide relief for these patients’ suffering. For instance, a severely

suffering infant might be eligible for euthanasia if the surrogate decision maker requests it, and

an extreme level of irreversible suffering is being experienced, as confirmed by two physicians.

In terms of confirming the suffering-levels of patients in Category C, I leave this

assessment to the discretion of two physicians (one of whom must have the required well-

established relationship with the patient and surrogate decision maker). The type of suffering in

this case would therefore be purely physical, since for incompetent patients, it is difficult—if not

impossible—to assess levels of mental suffering. I require that the physicians and surrogate

61

decision maker have agreed that euthanasia or physician-assisted death is the only reasonable

treatment option, given the extreme severity and irreversibility of the patient’s suffering. Like in

contested cases of Category B patients, Category C cases where the surrogate and the physicians

disagree may not be brought forward, out of respect for the opinions of all decision-making

entities.

Thus, Category C patients face the most limiting suffering requirements, because these

patients are lacking in competence to the degree that they are unable to make any treatment

decisions for themselves. For even without decision-making capabilities, it is clear—especially

in the context of my philosophical assessment of the suffering-based account of PAD and

euthanasia—that there would be many cases in which suffering could be so severe and futile that

causing death is far more compassionate than leaving these patients to live in their agonizing

states. It should be noted that my suggested treatment of Category C patients is where my policy

most strongly differs from both the Netherlands and Oregon legislations, which would not allow

physician-assisted death or euthanasia of patients below the age of 18 (in Oregon) or 12 (in the

Netherlands). But if I am to truly value an avoidance of suffering and the philosophical principle

of beneficence in creating this policy, then there is certainly reason for me to extend PAD and

euthanasia to Category C patients, who might be experiencing suffering even more extreme than

patients in Categories A and B.

Policy Review

Thus, I have set out requirements that would apply for these patient groups that reflect

three different levels of autonomy. My policy permits physician-assisted death, and in some

cases euthanasia, with no residency requirement and no life-expectancy requirement. Instead, my

proposed policy values a well-established physician-patient relationship, to ensure that for every

62

case of PAD or euthanasia, the physician has an extensive knowledge of the patient’s medical

history, current condition, and fundamental values. Like the Netherlands law, my policy asserts

that as long as a patient is undergoing suffering that is irreversible and interminable, she may be

eligible for physician-assisted death or euthanasia, depending on her category of autonomy (self-

reported physical or mental suffering for Category A patients, and higher physical suffering

standards for patients in categories B and C).

Regarding the terminology used in my suggested policy framework, I continue to use the

term physician-assisted death, despite the fact that in many of the cases in which my policy

would permit PAD, patients would be significantly shortening their lives. If we recall from

Section V, some believe that the six-month life expectancy requirement distinguishes Oregon-

legalized PAD with physician-assisted “suicide,” because the former represents hastening deaths

that would inevitably occur soon. However, even without a short life-expectancy requirement, I

still refer to my suggested policy as one permitting “physician-assisted death” and not

“physician-assisted suicide,” because I feel that death under the agonizing circumstances

outlined above is a reasonable and rational decision, as opposed to more general cases of suicide,

which are viewed as irrationally life-shortening.

In order to be implemented, the suggested framework I have laid out in this section would

need to be further expanded upon into a formal policy. But the goals of this paper are to suggest

a possible legislative framework, based in the ethical foundations that I’ve shown to be necessary

for a philosophically sound PAD and euthanasia policy. Having provided this philosophical

account and the type of policy that a hybrid philosophical approach might generate, perhaps

further discussion could flesh out this framework into a more formal piece of legislation that

could eventually be implemented.

63

XI. Summary & Conclusion

In this paper, I have argued about the notable distinction between the philosophical

foundations of the Oregon Death with Dignity Act and the Dutch Euthanasia Act. In particular, I

have argued that the Oregon legislation is primarily based on an attempt to protect patient

autonomy, while the Netherlands policy is mainly based on an avoidance of patient suffering. I

have explored existing philosophical support for these distinct foundations for permitting

physician-assisted death and euthanasia, and discussed the benefits and drawbacks that come

along with legislation built upon each of these bases. With these advantages and drawbacks in

mind, I have argued that an ideal policy would incorporate philosophical elements of both the

Oregon and Netherlands legislation, by showing a respect for patient autonomy coupled with an

attempt to avoid suffering.

In the policy I have formulated, I distinguish between patients based on their levels of

autonomy and competence, and argue that for patients with lower levels of competence, a higher

standard of suffering severity should be required. These established categories of autonomy, and

the different levels of suffering required for each of them, reflect the importance of weighing

both a respect for autonomy and an avoidance of suffering when it comes to decisions about

physician-assisted death and euthanasia. My suggested policy represents an attempt to ensure

that such decisions are always founded in a strong basis that combines autonomy and suffering,

giving these values different weights depending on the individual characteristics of the patient at

hand.

With this in mind, it is clear that PAD legislation and other similar policies would be

improved by increased international discussions about these issues. For, when using an

international framework to discuss the issue of physician-assisted death and euthanasia, we can

64

draw from the profound advantages that come along with these regions’ respective ethical

foundations. There are certainly more questions to be answered when it comes to my suggested

policy and its implementation. As I mentioned in Section X, my suggested legislative framework

would have to be expanded upon as a formal policy in order to be implemented. In addition,

although I suggest using the MSAS and MQOL assessments, there is always room for

improvement when it comes to the scales that we use to determine levels of emotional and

physical suffering, and the weight that should be given to these forms of suffering when it comes

to making treatment decisions. Lastly, I am aware that we are in need of a discussion of the

reporting requirements that should be implemented along with any piece of PAD and euthanasia

legislation, but this too is a large topic that requires further discussion. Even with these areas for

further discussion in mind, this suggested hybrid philosophical approach can serve as a model for

a philosophically sound account of physician-assisted death and euthanasia that draws from these

two necessary ethical foundations of respect for patient autonomy and avoidance of suffering.

65

Bibliography

American Medical Association, “Opinion 2.21 – Euthanasia.”

http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-

ethics/opinion221.page?.

American Medical Association. “Opinion 2.211 - Physician-Assisted Suicide.” http://www.ama-

assn.org/ama/pub/physician-resources/medical-ethics/code-medical-

ethics/opinion2211.page?.

Ardelt, Monika “Physician-Assisted Death,” C. D. Bryant et al. (eds.): Handbook of Death and

Dying, Volume One: The Presence of Death, Thousand Oaks, CA: Sage Publications,

2003: 424-434.

Ball, Howard. At Liberty to Die the Battle for Death with Dignity in America. New York: New

York University Press, 2012.

Beauchamp, Tom. “The Principle of Beneficence in Applied Ethics.” In The Stanford

Encyclopedia of Philosophy, edited by Edward N. Zalta, Winter 2013., 2013.

http://plato.stanford.edu/archives/win2013/entries/principle-beneficence/.

Biegler, Paul. "Autonomy And Ethical Treatment In Depression." Bioethics 24, no. 4 (2010):

179-89.

Braddock III, Clarence H., and Mark R. Tonelli. "Physician Aid-in-Dying." Ethical Topics in

Medicine. 1998. Accessed April 24, 2015.

https://depts.washington.edu/bioethx/topics/pad.html.

Brock, Dan W., “Voluntary Active Euthanasia,” The Hastings Center Report, Vol. 22 (2); Mar-

Apr 1992.

Brock, Dan W., and Steven A. Wartman. “When Competent Patients Make Irrational Choices.”

New England Journal of Medicine 322, no. 22 (May 31, 1990): 1595–99.

Buchanan, Allen E., and Dan W. Brock. Deciding for Others: The Ethics of Surrogate Decision

Making. 1 edition. Cambridge England ; New York: Cambridge University Press, 1990.

Buiting, Hilde, Johannes van Delden, Bregje Onwuteaka-Philpsen, Judith Rietjens, Mette Rurup,

Donald van Tol, Joseph Gevers, Paul van der Maas, and Agnes van der Heide.

“Reporting of Euthanasia and Physician-Assisted Suicide in the Netherlands: Descriptive

Study.” BMC Medical Ethics 10 (2009): 18.

Carrick, Damien. “Euthanasia for Children Expands Legal Debate in Belgium.” Text. Radio

National, February 19, 2014.

http://www.abc.net.au/radionational/programs/lawreport/5269980.

66

CBS StatLine. Statistics Netherlands. “Deaths by medical end-of-life decision; age, cause of

death.”

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLen&PA=81655ENG&LA=e.

Centers for Disease Control and Prevention. “Trends in Suicide Rates Among Both Sexes, by

Age Group, United States, 1991-2009.”

http://www.cdc.gov/violenceprevention/suicide/statistics/trends02.html.

Christman, John. “Autonomy in Moral and Political Philosophy,” July 28, 2003.

http://plato.stanford.edu/archives/spr2015/entries/autonomy-moral/.

Cohen-Almagor, Raphael. Euthanasia in the Netherlands: The Policy and Practice of Mercy

Killing. Springer Science & Business Media, 2008.

Cohen-Almagor, Raphael. “Why the Netherlands?” The Journal of Law, Medicine & Ethics 30,

no. 1 (March 1, 2002): 95–104.

Cohen, S. Robin. McGill Quality of Life Questionnaire. Departments of Oncology and Medicine,

McGill University Investigator, Lady Davis Institute for Medical Research.

Cowart, Dax and Robert Burt. Confronting Death: Who Chooses, Who Controls?” Hastings

Center Report, Vol. 28, No. 1 (1998): 14-17.

Death with Dignity Requirements. Oregon Public Health Division.

https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/Deathwit

hDignityAct/Documents/requirements.pdf.

Dworkin, Ronald, Thomas Nagel, Robert Nozick, John Rawls, and Judith Jarvis Thomson,

“Assisted Suicide: The Philosophers’ Brief.”

http://www.nybooks.com/articles/archives/1997/mar/27/assisted-suicide-the-

philosophers-brief/.

Graham, Kathy T. “Last Rights: Oregon’s New Death with Dignity Act.” Willamette Law Review

31, no. 3 (1995): 601–46.

Haberman, Clyde. "Stigma Around Physician-Assisted Dying Lingers." The New York

Times. March 22, 2015. http://www.nytimes.com/2015/03/23/us/stigma-around-

physician-assisted-dying-lingers.html?_r=0.

Heinz, Spencer. "End Game." The Oregonian, December 5, 1994. Accessed March 24, 2015.

Hondius, Ewoud, and Annet Van Hooft. "The New Dutch Law on Medical

Services." Netherlands International Law Review, 1996.

67

Kamisar, Yale. “Some Non-Religious Views against Proposed ‘Mercy-Killing’ Legislation Part

1.” University of Michigan Law School Scholarship Repository. 1976.

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2065&context=articles.

Kimsma, G. K. “Death by Request in The Netherlands: Facts, the Legal Context and Effects on

Physicians, Patients and Families.” Medicine, Health Care, and Philosophy 13, no. 4

(November 2010): 355–61.

Kuhse, Helga. "The Case for Active Voluntary Euthanasia." The Journal of Law, Medicine &

Ethics: 145-49.

Maynard, Brittany. "My Right to Death with Dignity at 29." CNN. November 2, 2014.

http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/.

National Palliative Care Research Center. Memorial Symptoms Assessment Scale.

http://www.npcrc.org/files/news/memorial_symptom_assessment_scale.pdf.

Netherlands Ministry of Foreign Affairs: FAQ – Euthanasia 2010: The Termination of Life on

Request and Assisted Suicide (Review Procedures) Act in practice.

http://www.patientsrightscouncil.org/site/wp-

content/uploads/2012/03/Netherlands_Ministry_of_Justice_FAQ_Euthanasia_2010.pdf.

O’Keefe, Mark. “Dutch Courts Provide Loophole for Doctors.” The Oregonian, December 19th,

1994.

O’Neill, Patrick. "Physician-Assisted Suicide Law Has It’s Day in Court." The Oregonian,

December 19, 1994.

Oregon Death with Dignity Act revised Statute. Chapter 127.

https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors127.html.

Oregon Public Health Division.

http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/Deathwith

DignityAct/Documents/year17.pdf.

Quill, Timothy and Robert Brody. “‘You Promised Me I Wouldn’t Die like This!’ A Bad Death

as a Medical Emergency.” Archives of Internal Medicine 155, no. 12 (June 26, 1995):

1250–54.

Rachels, James “Active and Passive Euthanasia.” Killing and Letting Die. Bonnie Steinbock and

Alastair Norcross Ed. New York: Fordham University Press, 1994: 112-19.

Rachels, James, “More Impertinent Distinctions and Defense of Active Euthanasia,” Killing and

Letting Die. Bonnie Steinbock and Alastair Norcross Ed. New York: Fordham University

Press, 1994: 139-154.

68

“Review procedures for the termination of life on request and assisted suicide and amendment of

the Criminal Code and the Burial and Cremation Act (Termination of Life on Request

and Assisted Suicide (Review Procedures) Act).

http://www.patientsrightscouncil.org/site/wp-

content/uploads/2012/05/Dutch_law_04_12.pdf.

Velleman, J. David. “Against the Right to Die.” Journal of Medicine and Philosophy 17, no. 6.

69

Appendix I. Memorial Symptom Assessment Scale

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Source: National Palliative Care Research Center

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Appendix II. McGill Quality of Life Questionnaire

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73

74

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Source: S. Robin Cohen, Ph.D. (Psychology), McGill University